Madhya Pradesh High Court
Sadik Mohd Sabir vs State Of M.P. on 7 November, 2006
JUDGMENT S.L. Kochar, J.
1. These three appeals have been directed by the appellant against the common judgment dated 28th August, 2006, passed by learned Special Judge (S.C. and S.T.) (Prevention of Atrocities) Act, 1989, Indore in Special Case No. 52/03, whereby, convicted the appellants under Section 302 of the I.P.C., sentenced to R.I. for life and fine of Rs. 2,000/- to each, in default of payment of fine, additional R.I. for six months, and also under Section 201 of the I.P.C. sentenced each to undergo R.I. for one year and fine of Rs. 500/- each, in default of payment of fine further R.I. for two months.
2. The necessary facts for deciding these appeals are as follows:
On 13-5-2003 Sub-Inspector, B. R. Chouhan P.W. 15 posted at Police Station, Hiranagar proceeded for inquiry of Merg No. 13/03 from the police station. The merg was recorded by the Head Constable P.W. 14 Rammurti at the instance of Head Constable Daulatram. Sub-Inspector Chouhan found a dead body lying near broadgage of railway line, situated adjacent to the field of one Mahesh Khatri. The body was appearing to be of a young person aged 20-22 years. On his right hand, by tattooing, name Vijay was mentioned. On the left side of head, he found four injuries, caused by sharp edged weapon. Same were bleeding and ligature rope mark on the neck was also visible. At the distance of about three paces, in the mud, sign of grappling or scuffle/quarrel were present. On the spot, he recorded Dehalti Nalishi at 0/03 number dated 13-5-2003 and in inquest inquiry dead body was identified as the body of Vijay Singh, son of Shobharam and in the intervening night of 12th and 13th May, 2003 deceased-Vijay was called by Sonu at about 10.30 p.m., thereafter, he did not return back to his house and his dead body was found in the field. It is further said that appellant-Sonu had molested the modesty of Babita, sister of Vijay, because of which, they were not having talking terms. Before ten days prior to the incident, appellant-Sonu compromised the issue with deceased-Vijay and they became friends. They were oftenly living in the company of each other. It is further alleged that sister of appellant-Jitu alias Jitendra named Rina was having illicit relation with Vijay, because of which, Rina was visiting the house of Vijay and wanted to marry Vijay against his consent, because of which, Jitu was having animosity with de-ceased-Vijay. Appellant-Jitu and one Shekhar threatened deceased-Vijay to leave the company of Rina. Sister of appellant-Sadik was molested by their tenant to whom Sadik and Vijay gave beating and in the said case they went to jail. Sadik arranged surety for releasing of deceased-Vijay and demanded Rs. 5,000/- from Vijay for that purpose. On this ground, before 6 to 7 days, there was a quarrel between appellant-Sadik and deceased-Vijay.
3. In the merg inquiry, police found the prima facie case of commission of murder of Vijay by appellants, therefore. Crime No. 117/03 was registered. The inquest report is Exhibit-P/3 and the post-mortem report is Exhibit-P/14, conducted by P.W. 10 Dr. Ravindra Choudhary. On the basis of the inquest inquiry and Dehati Nalishi, FIR was registered vide Exhibit-P/11. The viscera of the deceased was preserved vide seizure memo Exhibit P/16 and spot map is Exhibit P/21. Some articles were seized from the spot, seizure memo is Exhibit P/22. On disclosure statement made by Sadik and Sonu, knife was seized and from Jitu alias Jitendra one iron rod was seized. Seized articles were sent to the Forensic Science Laboratory, Indore. Its report is Exhibit-P/C1. The appellants were charge-sheeted for commission of offence under Sections 302 and 201 of the I.P.C. as well as under Section 3(2)(5) of SC/ST (Prevention of Atrocities) Act, 1989.
4. The appellant refuted the charges. According to them they were falsely implicated. They did not examine any witness in defence. The learned trial Court, after examining the prosecution witnesses and hearing both the parties, convicted the appellants as mentioned herein above.
5. The learned Counsel for the appellants have not disputed the homicidal death of deceased-Vijay which is otherwise also properly proved by the prosecution on the basis of the statement of autopsy surgeon P.W. 10 Dr. Ravindra Choudhary. According to this witness, he found incised wound on the right parietal region 6x2 cm x cutting of skull bone and another incised wound on left parietal region 7x4 cm x cutting of bone. Underneath this injury, brain was also cut up to 0.5 cm. The clotted blood was present. On left parietal region No. 3 and No. 4 incised injuries were also present. Underneath these injuries, bones were cut and ecchymosis were present. On internal examination, clotted blood was found inside the brain with ecchymosis. There was extra-dural and sub-dural haematoma. Brain was damaged/ cut. According to Dr. Chouhan, injuries were anti-mortem in nature. He had also preserved viscera of the deceased. In his opinion, deceased died because of shock and excessive bleeding due to head injuries. Head injuries were sufficient in ordinary course of nature to cause death and deceased died within 24-48 hours from the date and time of post-mortem examination i.e.; 14-5-2003 at 1 p.m.
6. The learned Counsel for the appellants has submitted that there was no eye-witness of the incident. The prosecution case was based on circumstantial evidence, but in Court, prosecution has failed to establish clinching circumstances to prove the guilt of the appellants. The conviction is mainly based on the testimony of P.W. 1 Shobharam, P.W. 2, Leelabai, P.W. 3 Babita, P.W. 4 Ajay, P.W. 9 Mukesh and P.W. 13 Baldevsingh. The evidence of P.W. 1 to P.W. 4 is on the point of last seen of the deceased in the company of the appellants as well as motive and P.W. 9 Mukesh has deposed regarding some earlier incident between deceased and one Satyanarayan Yadav not connected with this case and P.W. 13 is the Investigating Officer.
7. The learned Counsel has criticised the statement of all these witnesses on the ground that they are the interested and partisan witnesses except Investigating Officer Baldevsingh P.W. 13. The statement of Baldevsingh about recovery of knife and rod has not been supported by the panch witnesses and the learned trial Court erred in relying on his uncorroborated testimony by the independent witnesses. The learned Counsel has also submitted that the presence of human blood on knife and rod is not sufficient for taking into consideration against the appellant in absence of serologist report about blood group tallying with the blood groups of the deceased.
8. On the other hand, learned Counsel for the State has vehemently supported the judgment and findings arrived at by the trial Court. According to him, appellants were last seen in the company of appellant-Sonu and all the three appellants had motive for committing murder of deceased. These circumstances coupled with presence of human blood on cloth and weapon, seized from the possession of the appellants, for which no reasonable and plausible explanation was given by the appellants.
9. We have perused the record and statements of all the aforesaid witnesses and are of the opinion that the evidence of last seen of deceased with appellant-Sonu is not of clinching nature. According to P.W. 1, father of deceased-Vijay, on 12-5-2003, Vijay was called by appellant-Sonu for going to attend the party in village Bhagiratpura. At that time, his son, daughter and wife were in the house. Thereafter, Vijay did not come back to house and found in dead condition on the next day morning near the railway track. On the same day, deceased was taken to M. Y. Hospital by the police and he saw his son in dead condition, having injuries on the head. This witness P.W. 1 Shobharam has also deposed in cross-examination para 10 that he along with P.W. 4 Ajay and P.W. 9 Mukesh went to M.Y. Hospital. They had seen the dead body and police was also present there. In para 11, the say of this witness is that, after post-mortem examination, dead body was handed over to him, but his statement was not recorded by the police in the M.Y. Hospital and the same was recorded in police station. The further say, of his witness is that, after leaving the house by deceased-Vijay, till recording of their statement by the police they did not lodge any report in the police station. He was confronted with his case diary statement Exhibit-D/-2 in which the fact that appellant-Sonu called the deceased saying that they would return back after attending the party in Bhagiratpura was not mentioned. This witness failed to assign any reasonable and plausible explanation for this important and material omissions in his case diary statement Exhibit-D/2. This is the main evidence against appellant-Sonu to establish calling the deceased from his house and deceased being present and seen lastly in his company. But this important fact is not mentioned in the case diary statement. In the statement Exhibit-D/2, only factum of calling and going with the deceased is mentioned. It is not mentioned that deceased was called by Sonu for going to Bhagiratpura to attend a party. This statement Exhibit-D/2 was recorded on 19-6-2003, after more than one month from the date of incident.
10. The statements of all the aforesaid witnesses were recorded on this date. Against appellant Sadik and Jitu alias Jitendra, there is no evidence of last seen in the company of deceased Vijay. P. W. 1 Shobharam, P. W. 2 Leelabai, P. W. 3 Babita and P. W. 4 Ajay are close relations of the deceased. They were residing together in one house and though they stated mainly regarding previous dispute with the appellants, but for establishing all the events as described in the prosecution story, prosecution has not placed any concrete material. The statements of these witnesses are mainly based on hearsay evidence about previous dispute between appellants and deceased. The prosecution has not filed any report lodged by the complainant party against appellants or by appellants against deceased Vijay.
11. P. W. 4 Ajay has been contradicted with his case diary statement Exhibit-D 3. In para 4 of his statement in which the fact of calling Vijay from his house by appellant Sonu and at that time his father was sitting outside the house is not mentioned and for this material omission he has not given any explanation. The witness P. W. 4 Ajay has not said anything about previous enmity between deceased Vijay and the appellants. Apart from this, mere evidence of motive would not be sufficient to bring home the guilt of appellants for commission of murder of deceased Vijay. The evidence of last seen together as discussed hereinabove does not inspire confidence because of delay in disclosure.
12. The learned trial Court relied upon the presence of human blood on knife, rod and cloth of Sonu alias Sunil, said to have been seized by the Investigating Officer PW 13 Baldevsingh. According to PW 13 Baldevsingh, at the instance of appellant Sadik, knife was seized from the Kothi/container kept inside the house. From appellant Sonu alias Sunil, one knife was seized from his house, but in the memorandum statement Exhibit-P/5 exact place in the house has not been mentioned. The statement of Investigating Officer PW 13 Baldevsingh Thakur about recovery of knife, rod and other articles, have not been supported by independent witnesses and this witness PW 13 has nowhere stated in his Court statement that, after preparing memorandum statement and seizure memo, he sealed all the seized articles in presence of the witnesses and obtained their signature on sealed packets. It is a trite law that prosecution is obliged to prove that incriminating articles seized, were sealed then and there on the spot in presence of the witnesses, and thereafter, same were kept intact till sending for analysis to the laboratory and public analyst found the sealed packets tallying all the seals with the specimen seals sent separately by the concerned authority. All these things have not been proved by the prosecution. Therefore, the evidence of presence of human blood on knife, rod and cloth of appellant Sonu could not be considered as incriminating circumstances against the appellants. Apart from this, there is no serologist report to establish that human blood found on these articles were the blood of same group of deceased. Therefore, presence of human blood simplicitor would not be an incriminating circumstance which could be considered against the appellant.
13. In view of the aforesaid analysis of the prosecution evidence, we are of the considered opinion that prosecution has utterly failed to establish each and every circumstance independently beyond reasonable doubts, forming chain, pointing out towards the guilt of the appellants unerringly, excluding all reasonable hypothesis of innocence of the appellants in their favour.
14. In the result, all these appeals of the appellants are allowed. Their conviction and sentence, are hereby, set aside. Appellant Sadik and Jitu alias Jitendra are on bail. Their bail bond and surety bond stand discharged. Appellant Sonu alias Sunil though granted bail by this Court, but according to learned Counsel, this appellant has not furnished bail bond and surety bond and at present, he is inside the jail. If this is so, the learned trial Court is directed to release him forthwith if not required in any other criminal case.