Madhya Pradesh High Court
Amar Singh vs The State Of Madhya Pradesh on 16 September, 2021
Author: Atul Sreedharan
1
Cr.A.No.660-2008
HIGH COURT OF MADHYA PRADESH AT JABALPUR
CRIMINAL APPEAL NO. 660/2008
Amar Singh and three others................................... Appellants
Versus
The State of Madhya Pradesh.................................... Respondent
For the appellants : Mr. Devdatt Bhave, Advocate appeared
as Amicus Curiae.
For the respondent/State : Mr. Manhar Dixit, Panel Lawyer
******
Present:
HON'BLE MR. JUSTICE ATUL SREEDHARAN
HON'BLE MRS. JUSTICE SUNITA YADAV
******
JUDGMENT
(16-09-2021)
Per : Sunita Yadav, J.
As per letter No.06/Warrant-1/2021 dated 01.04.2021 of
Superintendent, Central Jail, Satna (M.P.), it appears that appellant
no.1 Amar Singh S/o Rambharose Singh has died during the
pendency of this appeal on 30.04.2021. Therefore, this appeal so
far it relates to appellant no.1 Amar Singh, is abated.
2. Being aggrieved by the judgment and order dated 01.03.2008
passed in Sessions Trial No.152/2004 and supplementary Sessions
Trial No.75/2005 by the learned First Additional Sessions Judge
to the First Sessions Judge, Panna (M.P.) by which appellants
Amar Singh (since deceased), Halke, Raju @ Rajaram and Raju
@ Baghela have been convicted for the offence punishable under
Sections 302 and 201 of the Indian Penal Code and sentenced to
undergo life imprisonment and fine of Rs.50,000/- and rigorous
imprisonment for two years and fine of Rs.2000/- each,
respectively, in default of payment of fine, the appellants were
directed to undergo additional rigorous imprisonment for 5 years
under Section 302 of the Indian Penal Code and rigorous
imprisonment for 2 months under Section 201 of the Indian Penal
Code, the present appeal has been filed by the aforesaid
appellants.
3. The prosecution case in nutshell is that on 21.06.2004, the
SHO Devendra Nagar District-Panna received an information that
a beheaded dead body was floating in Satna river below the Itwa
bridge. It was also informed that a stone was tied up with the
body with the help of electric wires on the chest and a torn
banyan was wrapped around the chest and the head of the dead
body was lying in the nearby field of one Radhelal Kushwaha.
After getting the information, the SHO Devendra Nagar reached
the spot and recorded a Dehati Naleshi. The said Dehati Naleshi
was sent to P.S. Devendra Nagar District-Panna, on the basis of
which, Marg No.17/04 as well as Crime No.85/04 was registered
against the unknown person. After preparing the inquest
report/Panchnama, the body was sent for postmortem. On
24.06.2004, one Sushil Bilthariya submitted an application to
SHO Devendra Nagar stating that his brother Ashok Bilthariya
was missing from the Ashram of Dunha Baba Amar Singh. In that
application, it was further stated that Halke Vishwakarma, Ashok
Singh Thakur, Raju Dhimar, Mahesh Dhimar, Bhushan Singh
Thakur, Raju Kushwaha, Bablu Singh and Santosh Singh were
working in the Ashram of Dunha Baba along with Ashok
Bilthariya. It was further mentioned that the missing person
Ashok Bilthariya along with Halke Vishwakarma had come to the
house of applicant Sushil at Champa on 16.06.2004 and after
having meals in the night, both Halke and Ashok went to the
Ashram of Amar Singh.
4. In the said application, it was also stated that on inquiring
from Amar Singh, Santosh Singh and Halke Vishwakarma,
different versions were being given by them. Subsequently, on
25.06.2004 another application was submitted by Sushil
Bilthariya to the SHO stating that the dead body found on
21.06.2004 might be that of his brother Ashok Bilthariya. Later
on, the dead body was identified by Prabhudayal (PW-4) Shri
Kumar (PW-13) and Rajkumar Bilthariya to be that of Ashok
Bilthariya.
5. Further case of prosecution is that deceased Ashok
Bilthariya was having illicit relations with the niece of Baba
Amar Singh on account of which he was killed on 18.06.2004
and after beheading the body, the same was taken in a Jeep
bearing Registration No. MP 19-E/7384. The beheaded body was
tied up along with the stone with electric wires and was thrown
in the river. The decapitated head of the body was thrown in a
field. During the course of investigation, clothes of deceased
along with weapons axe and farsa used for committing the crime
were seized at the instance of the accused persons. The seized
articles were sent for Forensic Examination.
6. After completion of investigation, charge sheet was filed
against the appellants/accused along with other co-accused
persons. The trial Court framed charge against the appellants and
other co-accused persons which was denied by them. At the time
of filing of charge sheet, accused Bhushan Singh, Bablu @
Ravendra and Mahesh Dhimar were found to be absconding.
During the course of trial, two co-accused persons namely
Bhushan and Bablu @ Ravendra were arrested and a
supplementary charge sheet was filed by the police. Thereafter,
both the trials were clubbed and a common judgment was
pronounced on 01.03.2008.
7. The learned counsel for the appellants has submitted that
the trial court failed to consider that the prosecution could not
prove the death of Ashok Bilthariya as the identification of the
dead body is not proved. The trial Court has also failed to
consider the origin of the blood group of the deceased which is
said to have been found with the seized articles. The chain of
circumstances is broken from the fact that the seizure of axe from
co-accused Santosh Singh did not contain any blood stains. He
further submitted that the trial court has also failed to consider
that there is no material evidence to prove that the deceased was
having an illicit relation with the niece of Amar Singh. The
motive is based on suspicion which cannot take place of a
positive proof. No motive has been attributed to the present
appellants.
8. On the other hand the learned counsel for the State argued
that the prosecution has successfully proved the chain of
circumstances to connect the appellants with the offence.
Therefore, the impugned judgment convicting and sentencing the
appellants should be sustained.
9. In the light of above arguments rendered by opposite
parties, we have carefully examined the prosecution evidence.
The prosecution on its behalf examined as many as 18 witnesses
to prove its case. On perusal of the evidence produced by the
prosecution, it is clear that the present case is based on
circumstantial evidence. It is well settled law that where there is
no direct evidence against the accused and the prosecution rests
its case on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances
are found to be incompatible with the innocence of the accused.
In other words, there must be a chain of evidence so complete as
not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to show
that within all human probability the act must have been done by
the accused. All the links in the chain of circumstances must be
complete and should be proved through cogent evidence.
10. Baori Bai (PW-7) and Braj Kishore (PW-8) are the
witnesses who saw the body of the deceased first. These
witnesses have stated that after seeing the dead body in the river,
Chowkidar of the village was informed. Chowkidar Bukiya @
Shivbalak (PW-9) has deposed that after getting the information
about the dead body which was floating in the river, he informed
the police of Devendra Nagar. The police arrived and recovered
the dead body and the decapitated head of the body.
11. Vinod Sonkiya (PW-10), the then Tehsildar, has deposed
that he got the dead body identified by Prabhudayal (PW-4),
Sushil Kumar (PW-12) and Shri Kumar (PW-13). These witnesses
have corroborated the statement of Vinod Sonkiya (PW-10) and
deposed that they had identified the body and found that the dead
body was that of Ashok Bilthariya. Nothing came out in the
cross-examinations of above witnesses which goes to the root of
the prosecution story. Hence, the argument of the defence counsel
is not tenable that the identification of the dead body is not
proved.
12. Dr. P. Shrivastava (PW-14) has conducted the postmortem
on the body of the deceased. According to the doctor, while
examining the dead body, he found an incised wound measuring
11cm x 5cm x 11.5cm round shaped on the back of the neck. He
further stated that because of this injury, the head got severed
from the torso. The injury was ante mortem and was caused by a
sharp object. The death was homicidal in nature and the injury
was sufficient to cause the death. In the light of the evidence as
discussed above, it is proved that the body which was found was
that of Ashok. The death of Ashok was homicidal in nature and
was caused by some sharp edged weapon.
13. The prosecution has relied upon following circumstances to
link the appellants with the crime;
(1) Deceased Ashok was last seen with the accused/appellant
Halke and both the deceased and the accused/appellant Halke
went to the Ashram of accused Amar Singh.
(2) The weapon used in the crime, the clothes and shoes of the
deceased were recovered at the instance of accused persons.
14. The prosecution has produced Parvati (PW-3), Asharam
(PW-5), Siyaram (PW-6) and Sushil Kumar (PW-12) to prove that
deceased Ashok was with accused/appellant Halke when they saw
the deceased for the last time.
15. Parvati (PW-3), who is the sister of the deceased has stated
that she had two brothers. The deceased was her elder brother
and Sushil (PW-12) is her younger brother. Deceased Ashok
worked in Dunha Baba Ashram. On 16 th June, his brother Ashok
came to the house along with a Barhai (carpenter) and asked her
to cook food for them. She prepared the food and offered her
brother to have it but her brother refused saying that he would
rather have his dinner at the Ashram of Dunha Baba. Thereafter
she packed the food in a polythene and handed it over to her
brother Ashok. After taking the food, her brother left the house
and never come back. During recording her court statement, this
witness has identified the accused Halke as the barhai (carpenter)
who had visited her house with Ashok that day.
16. Sushil Kumar (PW-12) has corroborated the statement of
Parvati (PW-3), who is his sister, and deposed that on
16.06.2004, he saw his brother Ashok for the last time when he
along with accused/appellant Halke Vishwakarma came to his
house. This witness has stated that he saw Ashok and Halke
carrying their food. Ashok and Halke left the house saying that
they were going to the Ashram of Dunha Baba. Next morning, he
got to know that on the previous night his brother Ashok had
stayed in the house of Siyaram (PW-6). After that day, his brother
Ashok never returned.
17. Siyaram (PW-6) has testified that on 16 th June, 2004
deceased Ashok and accused/appellant Halke came to his house.
Ashok asked him to fetch food and when he expressed his
inability, Ashok went to his own house and brought some food.
Halke and Ashok had their dinner in his house and slept in the
same house. Next morning, Halke and Ashok left his house
saying that they were going towards Dunha. After that, he had
never seen Ashok.
18. After going through the evidence of Parvati (PW-3),
Siyaram (PW-6) and Sushil Kumar (PW-12), it is clear that all the
above witnesses had seen the deceased Ashok with the
accused/appellant Halke on 16 th June, 2004 for the last time.
However, as per the prosecution case, on 18 th June, 2004
Asharam (PW-5) had taken the deceased Ashok on his tractor to
the Ashram of Dunha which, according to the prosecution story,
had been run by the accused Amar Singh. Consequently, it is not
proved that Parvati (PW-3), Siyaram (PW-6) and Sushil Kumar
(PW-12) had seen the deceased on 16.06.2004 for the last time
because the deceased Ashok was seen by PW-5 Asharam on
18.06.2004. Since Asharam (PW-5) is the person who, according
to the prosecution story, saw the deceased Ashok on 18.06.2004
for the last time; therefore, the evidence of this witness is very
significant for the prosecution to prove the circumstance of last
seen together.
19. PW-5 Asharam in his Court evidence has deposed that he
used to drive the tractor of accused/appellant Amar Singh. He
doesn't know the employees, who worked in the Ashram of Amar
Singh. In the month of June, he went to Devendra Nagar by his
tractor. There were many passengers on his tractor. Deceased
Ashok was also traveling on his tractor. Deceased Ashok along
with other passengers had alighted at Devendra Nagar Square
(Chauraha).
20. Asharam (PW-5) has been declared as hostile by the
prosecution. During the cross-examination, this witness has not
supported the case of prosecution that the deceased Ashok had
gone to the Ashram of Dunha on his tractor along with appellant
Halke. Consequently, the first circumstance, the prosecution has
relied upon, that the deceased was last seen with the appellant
Halke and they both went to the Ashram of Amar Singh is not
proved.
21. In the light of the above discussion, the finding of the trial
Court that the deceased Ashok was last seen on 16.06.2004 by the
prosecution witnesses Parvati (PW-3), Siyaram (PW-6) and
Sushil Kumar (PW-12) is found to be contrary to the evidence
available on record.
22. As per the prosecution story, the appellants Halke, Raju @
Rajaram and Raju @ Baghela were the employees of the
appellant Amar Singh (since deceased) but no corroborative
evidence like pay roll, service contracts, work assigned to them
etc. are produced by the prosecution to prove this fact. PW-5
Asharam who used to drive the tractor of accused/appellant Amar
Singh has not supported the prosecution story that the appellants
Halke, Raju @ Rajaram and Raju @ Baghela worked in the
Ashram of Amar Singh. Therefore, it is not proved that the
present appellants Halke, Raju @ Rajaram and Raju @ Baghela
worked in the Ashram of Amar Singh as his employees and were
under obligation to obey his directions.
23. Seizure of incriminating articles at the instance of accused
persons is the second circumstance to connect the appellants with
the crime. The prosecution has produced Shri Kumar (PW-13) to
the alleged recoveries at the instance of accused persons.
According to this witness, a piece of wire was seized before him
at the instance of accused Ashok Singh as per Ex.P/25. He further
stated that in pursuance to the disclosure of Raju Dhimar, a lower
of tracksuit was seized as per Ex.P/27 and one spade along with a
pickaxe were seized as per Ex.P/31 at the instance of accused
Raju @ Rajaram. It is evident from the perusal of the material
available on record and the seizure memos Ex.P/25, Ex.P/27 and
Ex.P/31 that the said articles were allegedly seized from the open
place, spade and pickaxe were seized from the open land of the
Ashram and not from the temples of the Ashram. As per PW-13
Shri Kumar, the Ashram is surrounded by the fields. All the
places surrounded by the Ashram are the places where anyone
can have access and the witnesses have also accepted that the
seized articles are easily available in the market. The articles
seized were sent to the State Forensic Science Laboratory, Sagar
for the Serological test. The FSL report is Exhibit-P/67. A
perusal of the said report, reveals that no blood was found on the
seized articles i.e spade, axe and pickaxe allegedly used to
commit the murder of Ashok. Therefore, from the solitary
circumstance of the alleged recovery of the articles as described
above does not prove the guilt of appellants without any other
incriminating circumstance to complete the chain. Standard of
proof in a criminal trial is proof beyond reasonable doubt
because the right to personal liberty of a citizen can never be
taken away by the standard of preponderance of probability. In
Subramanian Swamy Vs. A.Raja (2012) 9 SCC 257 it was held
that suspicion, however strong, cannot take the place of legal
proof.
24. When the prosecution is based on circumstantial evidence,
the motive behind the crime becomes important. In this case, as
per prosecution story, the deceased Ashok had an illicit
relationship with the niece of the accused/appellant Amar Singh
but the prosecution has failed to produce cogent evidence to
prove the motive as mentioned above. Parvati (PW-3) who is the
sister of the deceased Ashok, has stated that she was not aware of
the fact that her brother Ashok was beaten up because of his
relationship with the niece of accused/appellant Amar Singh.
25. Sushil Kumar (PW-12) in his Court evidence at para 4 has
stated that he came to know that 10 to 15 days before the date of
incident, accused/appellant Amar Singh had beaten up Ashok
because he had a doubt that Ashok was having an affair with his
niece. But when we compare his court statement with the police
statement, it reveals that there is an omission in his police
statement on this fact which shows that this witness has
improvised his court statement. The evidence of this witness on
this point is also based on hearsay evidence and he has not even
disclosed the source of information about the alleged affair
between the deceased and the niece of Amar Singh. Therefore,
his Court statement about the alleged illicit relationship between
the deceased Ashok and niece of Amar Singh being the motive
behind the crime is also not found to be trustworthy . Moreover
the appellant Amar Singh died during the pendency of this appeal
and no motive has been attributed to the present appellants
Halke, Raju @ Rajaram and Raju @ Baghela by the prosecution.
26. The net result of the above discussion is that the
prosecution has not been able to prove each of the links in the
chain of circumstances or that the proved circumstances point
unmistakably to the guilt of the appellants. Therefore, the trial
Court erred in convicting the appellants for the offence under
Sections 302,201 of IPC.
27. Consequently, the impugned judgment of the trial Court and
the order of sentence are accordingly set aside. The appellants
Halke, Raju @ Rajaram and Raju @ Baghela are accordingly
acquitted of the offences punishable under Sections 302,201 of
IPC.
28. Resultantly, the appeal is allowed. The bail bonds and
surety bonds of appellants Halke, Raju @ Rajaram and Raju @
Baghela stand discharged.
29. Before parting this case, we record our appreciation to Mr.
Devdatt Bhave, Advocate who has appeared as amicus curiae in
this case and assisted this Court.
(Atul Sreedharan) (Sunita Yadav)
Judge Judge
b
Digitally signed
by BIJU BABY
Date: 2021.09.20
12:52:25 +05'30'
