Madhya Pradesh High Court
Vinod Kumar vs The State Of M.P. on 8 August, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
1 CRA-134-1996
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 8 th OF AUGUST, 2024
CRIMINAL APPEAL No. 134 of 1996
VINOD KUMAR
Versus
THE STATE OF M.P.
Appearance:
Shri Sidhhant Kochar - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal
This appeal is filed being aggrieved of the judgment of conviction
recorded by the First Additional Sessions Judge to the Sessions Court, Betul
Link Court at Multai District Multai in Sessions Trial No.148/1993 on 17 th
January, 1996, whereby the learned Sessions Judge has convicted appellant
Vinod Kumar S/o Birbal Kunbi under Section 302 of IPC with life
imprisonment and fine of Rs.1000/- with default stipulation of six months
additional rigorous imprisonment.
2. Learned counsel for the appellant submits that appellant is
innocent. Reading from the prosecution story, Shri Sidhhant Kochar, learned
counsel for the appellant submits that case of the prosecution is that deceased
2 CRA-134-1996
Chandrakala aged about 16 years was daughter of complainant Govind Rao.
As per Govind Rao (PW-1), deceased Chandrakala had gone to fields to pick
some raw mangoes but when she did not return home then her grandmother
had gone to see her in the fields. When she found her to be lying dead in a
Nala. She had come back to home and had informed this fact to Govind Rao
(PW-1), then Govind Rao along with others had gone to Nala and found the
dead body. Grandmother has not been examined by the prosecution.
3. Reading further from the prosecution story, it is pointed out that it
was one Namdeo who had last seen deceased Chandrakala in the company of
the present appellant going towards the field. Prosecution has interestingly
neither recorded statement of Namdeo under Section 161 of Cr.P.C. nor
examined him in the Court to connect the chain of circumstances out of
which first circumstance is of being last seen.
4. After 6 days of the incident appellant was arrested. It is submitted
that an axe and his clothes were seized on the basis of which conviction has
been recorded inasmuch as in the FSL report (Ex.P/14), it has come on
record that axe article 'd', recovered on 22/04/1993, shirt article 'e' and Pant
article 'f' contained blood. It is submitted that no report of Serologist is
available on record to show that the blood found on these articles was of the
human origin.
5. Thus, it is submitted that conviction on the basis of circumstantial
evidence is not made out and it is a fit case for discharge of the appellant.
6. Shri Manas Mani Verma, learned Government Advocate, in his
turn, supports the case of the prosecution and submits that there is evidence
3 CRA-134-1996
of witness of seizure i.e. Shanker (PW-7), who has deposed that seizure had
taken in front of him. Similarly, Nagnarayan (PW-14) is also a witness of
seizure and, therefore, on the basis of seizure memo which is supported by
the prosecution witnesses PW-7 and PW-14 and also on the basis of FSL
report (Ex.P/17), conviction is required to be maintained.
7. After hearing learned counsel for the parties and going through
the record, it is evident that deceased Chandrakala as per prosecution story
had left her home at about 8:00 AM. She was found dead by 12:00 O' noon.
Postmortem was conducted by Dr. S. Chouhan (PW-12) on 17/04/1993 at
about 4:00 PM. Thus, postmortem was conducted on the next day of
recovery of dead body.
8. Dr.Chouhan in his cross-examination has replied to the query
report saying that incised wound found on the body could have been caused
with the kind of that axe but requested to send the axe for examination in the
hands of Serologist. It is evident from records that no report of Serologist is
available on record.
9. It is further submitted that cause of death was excessive bleeding.
Doctor had opined that privacy of the victim was not compromised and her
genital parts were normal, hymen was intact and no rape was committed on
her. No motive has been pointed out towards the present appellant to commit
such gruesome act especially when the only suggestion is that there was
some enmity on account of throwing of garbage on the mound of garbage.
10. Govind Rao (PW-1) had not seen the deceased in the company of
present appellant. Bhagulal (PW-2) is the person who had seen deceased
4 CRA-134-1996
when he had visited the Nala after receiving intimation from the grandmother
of the deceased. He is not a witness of last seen. Shyam Rao (PW-3) has
deposed that Chandrakala died because of incised wound. He had signed on
notice Ex.P/3 and Panchnama Ex.P/4. This witness has admitted that police
had caught hold of the accused, therefore, we said that Vinod killed
Chandrakala.
11. Manju Bai (PW-4), is the mother of the deceased. She admitted
that there was a dispute with Vinod over the garbage. However, she admitted
that they were in talking terms with Vinod and his father/ grandfather. She
admits that on the date of incident, they did not discover as to who was the
culprit to kill Chandrakala. She admitted that at the time of incident Vinod
was studying in village Sasundra residing with his grandfather. The place of
incident is Chhindkhed, whereas it has come on record that Vinod was
studying at village Sasundra. Thus, it was necessary for the prosecution to
point out that on the date of incident, Vinod had visited Chhindkhed from
village Sasundra. There is no such evidence available on record.
12. Fhatya (PW-5) is the sister of deceased Chandrakala. She has
categorically stated that who killed her is not known to her. Her grandmother
Savitribai had seen the dead body of Chandrakala in the field and she had
informed her that Chandrakala is no more. She had not touched Chandrakala.
Her neck was slit and there were injury marks on her hands too. She deposed
that Police had taken her statement, but she never said that they have any
doubt on Vinod. Interestingly, Savitribai had not been examined as a
witness.
5 CRA-134-1996
13. Timaji (PW-6) is Sarpanch of village Chhindkheda who is a
witness of 'lash panchayatnama'. Shankar (PW-7) has admitted in his cross-
examination that clothes and axe were taken out by Vinod from a Khaliyan
and were given to police. However, there is no evidence of sealing of shirt,
pant and axe which was seized from the possession of Vinod at the instance
of Vinod.
14. Nagnarayan (PW-14) is hostile. He has not supported that
prosecution case. Seizure is shown from Saikheda whereas this witness says
that he had met the accused at Chhindkheda and not in Saikheda. He had
given axe and clothes from his house at Chhindkheda.
15. Seizure memo Exhibit-P/7 shows seizure from the field of the
accused but there is no evidence of any revenue official to point out that the
place of recovery actually belongs to the appellant. Thus, the onus was on
Investigating Officer to have proved that the items which were seized
namely the clothes of the appellant, and an axe were properly sealed and
were send for FSL examination. There is no such fact mentioned in the FSL
report (Ex.P/14).
16. Thus, when the articles were not seized and sealed in the
presence of the witnesses, then onus was on the prosecution to have proved
that as in whose presence these articles were sealed and preserved but that
onus has not been discharged by the prosecution.
17. Thus, it is evident that in absence of examination of Namdeo so
called witness of last seen, present appellant has been falsely implicated, also
there being no witness proving the seizure or sealing of the articles through
6 CRA-134-1996
which appellant has been connected with the offence, conviction of the
appellant under Section 302 of IPC, merely on the basis of surmises and
conjectures cannot be upheld.
18. Since, the prosecution has failed to complete the chain of
circumstances and there are several loose ends in the prosecution story and
their failure to examine the star witness Namdeo who had last seen
Chandrakala being accompanied by the present appellant, so also non-
examination of the witness of the dead body for the first time namely
Savitribai, grandmother of the deceased, it cannot be said that chain of
circumstances is complete. Prosecution has not only failed to complete the
chain of circumstances but has also failed to prove the case beyond a
reasonable doubt. They have also failed to prove the mens rea.
19. In view of such facts, when chain of circumstances is not
complete, conviction cannot be maintained on the basis of circumstantial
evidence.
20. The appeal deserves to be allowed and is allowed. Impugned
judgment dated 17.1.1996 in S.T.No.148/93 is set aside. Appellant is already
on bail. His bail bonds stand discharged.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
mc
