Sangram vs State Of M.P.
2022 Latest Caselaw 4140 MP

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                          Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

     HIGH COURT OF MADHYA PRADESH
            GWALIOR BENCH

                   DIVISION BENCH

                   G.S. AHLUWALIA

                                 &

     RAJEEV KUMAR SHRIVASTAVA J.J.

                  Cr.A. No. 647 of 2010

                           Sangram

                                Vs.

              State of M.P.
_______________________________________
Shri Arun Barua Counsel for the Appellant
Shri C.P. Singh Counsel for the State

Date of Hearing                : 22-03-2022
Date of Judgment               : 25th-03-2022
Approved for Reporting         :

                             Judgment

                         25th- March -2022

Per G.S. Ahluwalia J.

1.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the Judgment and Sentence dated 19-6-2010 passed by

Additional Sessions Judge Pichhore, Distt. Shivpuri in S.T. No. 140

of 2009 by which the appellant has been convicted under Section 302

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

of IPC and has been sentenced for Life Imprisonment and a fine of

Rs. 500/- with default rigorous imprisonment of 3 months.

2. The prosecution story in short is that on 5-5-2009 at about

11:00 A.M., the complainant Jairam Baghel gave an oral information

that his cousin sister Vimla, resident of village Dabra, had come

along with her children to attend the marriage. On 4-5-2009, her

elder son Naval Kishore went missing. Inspite of extensive search,

his whereabouts could not be ascertained. On 5-5-2009, an

information has been received that his dead body is lying in the Well

of Harbhajan.

3. Accordingly, Merg No. 11/1009 under Section 174 of Cr.P.C.

was registered. During the Merg Enquiry, police came to know that

in the marriage procession, there was some dispute between the

Appellant Sangram and Komal (father of the deceased) and the

appellant had given him a threat and due to this enmity, the Appellant

has killed Naval Kishore by pushing him in the Well of Harbhajan.

Accordingly, Dehati Nalishi was recorded and FIR in crime no. 95/09

was registered for offence under Section 302 of IPC. After

completing the investigation, police filed charge sheet for offence

under Section 302 of IPC.

4. By order dated 7-7-2009, the Trial Court framed charge under

Section 302 of IPC.

5. The appellant abjured his guilt and pleaded not guilty.

6. The prosecution examined Shivlal (P.W.1), Ramnath (P.W.2),

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

Maniram (P.W.3), Jairam (P.W.4), Nandram (P.W.5), Komal Pal

(P.W.6), Gulab (P.W.7), Dr. Rohit Bhadkariya (P.W.8), Naresh Kumar

Sharma (P.W.9) Laxmi Narayan (P.W.10), Narendra Sharma (P.W.11),

Himanshu Chaturvedi (P.W. 12), and K.P. Singh (P.W.13).

7. The Appellant examined Arvind Parashar (D.W.1) and

Ramdeen (D.W.2) in his defence.

8. The Trial Court by the impugned judgment, convicted and

sentenced the appellant for the above mentioned offence.

9. Challenging the judgment and sentence passed by the Court

below, it is submitted by the Counsel for the appellant, that the case is

based on circumstantial evidence and the chain of circumstances is

not complete.

10. The Counsel for the State has supported the reasoning assigned

by the Trial Court and justified the conviction of the appellant.

11. Heard the learned Counsel for the Parties.

12. Before adverting to the facts of the case, this Court would like

to consider as to whether the death of Naval Kishore Pal, aged about

9 years was homicidal, suicidal or accidental.

13. Dr. Rohit Bhadkariya (P.W.8) has conducted the post-mortem

of the dead body of Naval Kishore Pal and found the following

injuries on his body :

(i) A lacerated wound 4 cm x 2 cm x1 cm below nose and upper lip ;

(ii) Contusion/swelling 6 cm x 5 cm x 3 cm right parietal region with bleeding from right parietal region. The cause of death due to asphyxia (drowning), within 24

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

hours of commencement of Post-mortem.

A part of tibia bone was preserved for diatom test.

The post-mortem report is Ex. P. 6.

14. This witness was cross-examined. In cross-examination, he

stated that doesnot know that by which vehicle, the dead body was

brought. He had conducted the post-mortem on 5-5-2009 but by

mistake the date was mentioned as 5-4-2009. The deceased could

have sustained injury on his head either by lathi or by stone. It is

difficult to say that which food was consumed by the deceased for the

last time. He had handed over the tibia bone to the Police Constable.

15. Thus, it is clear that no question was put to the witness with

regard to cause of death.

16. The bone was sent to Medicolegal Institute, Bhopal for diatom

test and as per report, Ex. P.15, since bone was broken therefore,

diatom test could not be conducted and hence bone was returned.

17. As the cause of death opined by Dr. Rohit Bhadkariya (P.W.8),

has not been challenged by the Appellant, therefore, it is held that the

deceased died due to drowning.

18. Now the next question for determination is that whether the

death of the deceased was homicidal, accidental or suicidal.

19. The deceased is aged about 9 years. There is nothing on record

to suggest that the deceased might have committed suicide by

jumping in the Well. Therefore, the only question which remains to

be decided is as to whether the death was homicidal or accidental.

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

20. The prosecution in order to prove the death of Naval Kishor

Pal as homicidal has relied upon the following circumstances :

(i)      Motive

(ii)     Last Seen Together

(iii)    Recovery of Chappal of the deceased from the possession of

Appellant.

21. Before considering the evidence led by prosecution, this Court

would like to consider the law governing the field of circumstantial

evidence.

22. The Supreme Court in the case of Sharad Birdhichand Sarda

v. State of Maharashtra, reported in (1984) 4 SCC 116 has held as

under :

153. 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 v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "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

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

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.

23. The Supreme Court in the case of Pudhu Raja v. State,

reported in (2012) 11 SCC 196 has held as under :

15. In a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance by way of reliable and clinching evidence, and the circumstances so proved, must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty solely on the basis of the circumstances proved before it.

24. The Supreme Court in the case of Ram Singh v. Sonia,

reported in (2007) 3 SCC 1 has held as under :

39. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof, for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions.

25. The Supreme Court in the case of Inspector of Police Vs.

John David reported in (2011) 5 SCC 509 has held as under :

Case on circumstantial evidence

33. The principle for basing a conviction on the edifice of circumstantial evidence has also been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible.

34. This Court has clearly sounded a note of caution that in case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions.

35. This Court in State of U.P. v. Ram Balak had dealt with the whole law relating to circumstantial evidence in the following terms: (SCC pp. 555-57, para 11) "11. '9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and [bring home the offences] beyond any reasonable doubt.

10. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

11. In Padala Veera Reddy v. State of A.P. it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(3) the circumstances, taken cumulatively, 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 none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

* * *

16. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;

(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.' These aspects were highlighted in State of Rajasthan v. Raja Ram, at SCC pp. 187-90, paras 9-16 and State of Haryana v. Jagbir Singh."

26. This Court shall consider the evidence led by the prosecution

in the light of the law laid down by Supreme Court in the above

mentioned cases.

Motive

27. Shivlal (P.W.1) has stated that he had gone to attend the

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

marriage of Sunil and Komal (father of the deceased) as well as the

appellant were also there in the marriage procession. The appellant

was pulling the hairs and ears of Komal and when Komal objected to

it, then Appellant replied that he is not doing so. When again the

appellant tried to pull the ear of Komal, then Komal caught hold of

his hand and assaulted him by Chappal. He and Maniram intervened

in the matter. Thereafter, the Appellant extended a threat that Komal

may go back to his house, and he will see him. In cross-examination,

this witness claimed that he had informed the police that the

Appellant was pulling the hairs and ears of Komal and when he was

caught, Komal had assaulted him by Chappal, but could not explain

as to why said fact is not mentioned in his police statement, Ex. D.1.

28. Maniram (P.W.3) has stated that he had called his relatives to

attend the marriage of his son Sunil. Komal who is his nephew and

the Appellant who is also related to him were also present. While the

marriage procession was going in a trolley, some one pulled the ear of

Komal. Komal objected to it and said that now no one should pull his

ear, otherwise, he would assault by Chappal. Thereafter, the

Appellant tried to pull the ear of Komal, then Komal caught hold of

hand of the Appellant and assaulted him by Chappal. Thereafter,

Appellant extended a threat that he would see him.

29. Jairam (PW.4) has stated that since, Komal had assaulted the

appellant by Chappal, therefore, he has killed Naval Kishor. In cross-

examination, this witness stated he had also gone in marriage

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

procession. He was also sitting in the Trolley. Appellant, Komal and

Shivlal were sitting behind him. The incident of assault by Chappal

took place near Peepara village.

30. Komal Pal (P.W. 6) has also stated that while he was going in

the marriage procession, the appellant was pulling his hairs and ears

and he objected to it, but the Appellant did not stop. When the

appellant again tried to pull his ear, he caught hold of his hand and

assaulted him by Chappal and then the Appellant had given a

threatening.

31. Gulab (P.W.7) has also narrated the same motive. In cross-

examination, he stated that the appellant was not known to him, and

only after the incident of assault by Chappal took place, he came to

know about the name of the appellant.

32. Thus, the only motive which has been assigned by the

prosecution is that in the marriage procession, some one had pulled

the ear of Komal, which was objected by him, and thereafter, when

the Appellant also tried to pull the ear of Komal, his hand was caught

hold by Komal and he in his turn assaulted him by his Chappal.

Last Seen Together

33. Before considering the evidence of Last Seen Together, this

Court would like to consider the law governing the field of Last Seen

Together.

34. The Supreme Court in the case of Shailendra Rajdev Pasvan

v. State of Gujarat, reported in (2020) 14 SCC 750 has held as

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

under :

15. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In Bodhraj v. State of J&K, Rambraksh v. State of Chhattisgarh, Anjan Kumar Sarma v. State of Assam following principle of law, in this regard, has been enunciated: (Shailendra Rajdev Pasvan case, SCC OnLine Guj para 16) "16. ...The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

35. The Supreme Court in the case of Ashok v. State of

Maharashtra, reported in (2015) 4 SCC 393 has held as under :

12. From the study of above stated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non- explanation of death of the deceased, may lead to a presumption of guilt.

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

Here another judgment in Harivadan Babubhai Patel v. State of Gujarat, would be relevant. In this case, this Court found that the time-gap between the death of the deceased and the time when he was last seen with the accused may also be relevant.

36. The Supreme Court in the case of Mahavir Singh Vs. State of

Haryana reported in (2014) 6 SCC 716 has held as under :

12. Undoubtedly, it is a settled legal proposition that the last seen theory comes into play only in a case where the time- gap between the point of time when the accused and the deceased were seen alive and when the deceased was found dead (sic is small). Since the gap is very small there may not be any possibility that any person other than the accused may be the author of the crime............

37. The Supreme Court in the case of Jagroop Singh Vs. State of

Punjab reported in (2012) 11 SCC 768 has held as under :

27. Quite apart from the above, what is argued is that there is a long gap between the last seen and recovery of the dead body of the deceased. As per the material on record, the informant searched for his son in the village in the late evening and next day in the morning he went to the fields and the dead body was found. The post-mortem report indicates that the death had occurred within 24 hours. Thus, the duration is not so long as to defeat or frustrate the version of the prosecution. Therefore, there can be no trace of doubt that the deceased was last seen in the company of the accused persons.

38. The Supreme Court in the case of State of U.P. v. Satish,

reported in (2005) 3 SCC 114 has held as under :

22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.

39. The Supreme Court in the case of Kanhaiya Lal v. State of

Rajasthan, reported in (2014) 4 SCC 715 has held 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.

40. Thus, it is held that the initial burden is on the prosecution to

prove that for the last time the deceased was seen alive in the

Company of the accused. Further, the time gap between the last seen

together and death should be so minimal, which should rule out the

possibility that any other person other than the accused may have

committed the offence. Further more, the circumstance of Last Seen

Together by itself is not sufficient to draw an inference that it was the

accused who committed the offence. There must be something more

to establish the connectivity between the accused and crime.

41. In the present case, the prosecution has relied upon the

evidence of Shivlal (P.W.1) and Gulab (P.W.7) to prove the

circumstance of Last Seen Together.

42. Shivlal (P.W.1) has stated that on 4 th at about 11-12 P.M., he

was going towards Kadesara Salaiya. He had seen that Appellant was

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

going along with Naval towards the Well of Harbhajan. Thereafter,

he went to his village. On 5 th he came to know that the dead body of

Naval is lying in the Well of Harbhajan. He further stated that

thereafter he went to Lohagarh and came back on 8 th. He had seen

the Appellant and Naval from their back. He further stated that

Komal is the husband of his grand daughter. Thus, it is clear that the

deceased Naval Kishor was the great grand son of this witness. But

surprisingly, even after coming to know that the dead body of Naval

Kishor has been found in the Well, he went to Lohagarh and did not

join the family of Komal.

43. Gulab (P.W.7) has stated that after the marriage procession

came back, he went to his matrimonial house in Village Chankhari.

He stayed back in village Chankhari in the night of 3 rd. On 4th he was

coming back from village Chankhari, then he saw that the Appellant

and Naval Kishor, the son of Komal were standing on the boundary

wall of the Well. When he enquired from Naval that what he is

doing, then he replied that he has come along with his maternal uncle.

Thereafter, this witness went to his village Dabra. On 5 th, he came to

know that the dead body of Naval is lying in the Well situated in the

field of Harbhajan Yadav. This witness was cross-examined and in

cross-examination, he claimed that the appellant and Naval were

standing near the Well under a Sheesham tree. He stated that the

information that Naval is missing was received on 4 th itself. After

receiving such information, he immediately went to the house of

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

Komal, but he did not disclose to any body that he had seen the

Appellant and Naval at the Well. On 5th he went to Lohagarh. At

about 10 A.M., he had seen that ladies were fetching water from the

Well of Harbhajan Singh. His police statements were recorded after 8

days of the incident.

44. Thus, it is clear that Gulab (P.W.7) had met with Komal in the

night of 4th and even then he did not inform Komal that he had seen

the Appellant in the company of Naval Kishor, although he was

aware of the fact that Naval Kishor is missing.

45. Further, Gulab (P.W.7) in his examination-in-chief has stated

that he had seen the Appellant and Naval on the boundary wall of the

Well. Whereas according to spot map, Ex. 4, which was prepared on

the information given by Jairam and Komal, the Well had no

boundary wall and the Well was at the level of ground. Thus, when

Well had no boundary wall, then the question of standing on the

boundary wall of the Well doesnot arise. Further in cross-

examination, this witness has stated that he had seen the Appellant

and Naval Kishor standing near the Well under a Sheesham Tree.

However, in the spot map, Ex. P.4, there is no tree near the Well.

Komal (P.W.6) has also stated that the Well is a Kachha Well and is

not protected by stones ( ftl dqa, es esjs yMds dh yk'k feyh Fkh og

dqazvk dPpk gS vkSj ca/kk gqvk ugh gS )Further, this witness has stated that

on 5th while he was coming back, he saw that ladies were fetching

water from the Well of Harbhajan. If the ladies were fetching water,

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

then why they did not notice the dead body of Naval Kishor which

might be floating in the Well? Although Jairam (P.W.4) has stated

that the ladies had informed that the dead body of a boy is floating in

the Well, but in the cross-examination, he stated that he had reached

to the Well at 8:00 A.M. whereas Gulab (P.W.7) has stated that at

10:00 A.M., he had seen the women fetching water from the Well of

Harbhajan. The merg information Ex. P.8C was received at 11:00

A.M. and the Lash Panchnama, Ex. P.3 was prepared at 12:00 P.M. If

the dead body was already lying in the Well at 10:00 A.M., then no

one would fetch water from the Well. Further, the prosecution has not

examined any lady to prove that She had seen the dead body lying in

the Well. Thus, it is clear that the evidence of Gulab (P.W.7)

regarding last seen together is not trustworthy.

46. So far as the evidence of Shivlal (P.W.1) is concerned, he has

stated that he had seen the Appellant and Naval from their back and

they were going towards the Well. It is really surprising that Naval

Kishor was the great grand son of this witness, and even after

receiving the information that the dead body of Naval Kishor has

been found in the Well, he did not join the family of Komal and went

to Lohagarh and came back on 8th. This conduct of this witness raises

a suspicion on his truthfulness.

47. Accordingly, this Court is of the considered opinion, that the

prosecution has failed to prove the circumstance of Last Seen

Together beyond reasonable doubt.

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

Recovery of Chappal of deceased at the instance of Appellant.

48. The another circumstance is the recovery of an old Chappal

(Sleeper) on the disclosure made by the Appellant. Instead of

considering the fact as to whether the prosecution has proved the

recovery of Chappal of the deceased or not, it is suffice to mention

here that neither any Test Identification of Chappal was conducted

nor any witness has identified by the Chappal in the Court. Thus, the

prosecution has failed to prove that the Chappal of Naval Kishor was

recovered at the instance of the Appellant.

49. Thus, it is held that the prosecution has failed to prove the

circumstance of Last Seen Together and Recovery of Chappal of the

deceased at the instance of the Appellant. Now, the entire

prosecution story depends on the Motive.

50. The Supreme Court in the case of C.T. Ponnappa v. State of

Karnataka, reported in (2004) 11 SCC 391 has held as under :

8. Last circumstance against the accused was that his hand wash was taken and the same contained gunshot residue according to the report of the ballistic expert. It is true that this circumstance has been proved, but the same alone cannot form the basis for conviction of the accused as in a case of circumstantial evidence it is well settled that there must be a chain of circumstances and this solitary circumstance cannot be said to form a chain so as to fasten guilt upon the accused and on the basis of the same, irresistible conclusion, which is incompatible with the innocence of the accused cannot be drawn. In view of the foregoing discussions, we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt and the High Court was not justified in upholding conviction of the appellant.

51. Further more, the prosecution has failed to prove strong

Sangram Vs. State of M.P. (Cr.A. No. 647 of 2010)

motive on the part of the Appellant to push the deceased Naval

Kishor in the Well. Further, it is clear from the spot map, Ex. P.4, that

there was no boundary wall around the Well and the Well was at the

level of ground. Thus, it is clear that the deceased Naval Kishor, who

is a boy aged about 9 years, must have fallen down in the Well

accidentally and met with an unfortunate death.

52. Accordingly, it is held that the prosecution has failed to prove

the chain of circumstances. The death of the deceased Naval Kishor

was accidental in nature.

53. Accordingly the appellant is acquitted of the charge under

Section 302 of IPC.

54. Ex-Consequenti, the Judgment and Sentence dated 19-6-2010

passed by Additional Sessions Judge Pichhore, Distt. Shivpuri in S.T.

No. 140 of 2009 is hereby Set Aside.

55. The Appellant is in jail. He be released immediately, if not

required in any other case.

56. Let a copy of this judgment be provided immediately to the

Appellant, free of cost.

57. The record of the Trial Court be send back along with copy of

this Judgment for necessary information and compliance.

58. The Appeal succeeds and is hereby Allowed.

(G.S. Ahluwalia)                                     (Rajeev Kumar Shrivastava)
          Judge                                                          Judge
                       ARUN KUMAR MISHRA
                       2022.03.25 15:09:06 +05'30'