Madhya Pradesh High Court
Smt.Guddi vs State Of M.P. on 21 April, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1
High Court Of Madhya Pradesh
Bench at Gwalior
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DB:- Hon'ble Shri Justice G.S. Ahluwalia &
Hon'ble Shri Justice Rajeev Kumar Shrivastava
CRA No.105 of 2011
Balveer Singh Vs. State of MP
CRA No. 259 of 2011
Pappu alias Arvind Singh vs. State of MP
And
CRA No. 260 of 2011
Smt. Guddi vs. State of MP
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Shri Akhil Sinha, learned counsel for appellant Balveer
Singh in CRA 105 of 2011.
Shri DP Singh, learned counsel for appellant Pappu alias
Arvind Singh in CRA 259 of 2011.
Shri Arun Sharma and Shri SS Kushwah, learned counsel
for appellant Smt.Guddi in CRA 260 of 2011.
Shri CP Singh, learned counsel for State in all Criminal
Appeals.
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Reserved on : 05-04-2022
Whether approved for reporting : ......../......
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JUDGMENT
(Delivered on 21/04/2022) Per Rajeev Kumar Shrivastava, J:-
This judgment shall also govern disposal of CRA No. 259 of 2011(Pappu alias Arvind Singh vs. State of MP) and CRA No.260 of 2011 (Smt. Guddi vs. State of MP).
Since the facts and circumstances of the case in all criminal appeals are same, therefore, for the sake of convenience, they are heard simultaneously.2
(2) All the aforesaid Criminal Appeals u/S 374 CrPC have been preferred assailing the impugned judgment of conviction and order of sentence dated 5 th January, 2011 passed by Additional Judge to the Court of Second Additional Sessions Judge (Fast Track Court), Seondha, District Datia (MP) in ST No.103 of 2009, by which appellants Balveer Singh and Pappu @ Arvind Singh have been convicted u/S 302/34 IPC and sentenced to undergo Life Imprisonment with fine of Rs.1,000/- and further u/S 120-B IPC, sentenced to undergo Life Imprisonment with fine of Rs.1,000/- with default stipulations. Both the sentences have been directed to run concurrently. Appellant Smt. Guddi has been convicted u/S 120-B IPC and sentenced to Life Imprisonment with fine of Rs.1,000/-
with default stipulation.
(3) Prosecution case, in brief, is that on 02-06-2009, Chowkidar of Village Neemdada, Meharwan Singh (PW2) informed Police Station Deepar, that the dead body of one unknown person is lying on the road on the basis of which, ASI Ramkumar (PW19) who was posted at Police Station Dirolipar reached the spot and recorded a merg No.0/09 u/S 174 CrPC. Statement of ASI Meharwan Singh (PW2) was recorded vide Ex.P6 and Merg intimation is Ex.P25. Lash Panchnama was prepared vide Ex.P2 and spot map was 3 prepared vide Ex.P5. Dead body of the deceased was sent for postmortem vide requisition Ex.P26. Dr. Anand Unaya (PW11) conducted postmortem of the deceased and the postmortem report is Ex.P18. The father of deceased Prabhudayal (PW10) identified the dead body of deceased. Statements of witnesses Prabhudayal (PW10), Ganga Singh (PW8), unexamined persons, namely, Samrath Singh and Shivraj Singh were recorded, on the basis of which, FIR at Crime No.32/2009 for offence u/S 302/34 of IPC was registered vide Ex.P28. Sub-Inspector Alok Singh (PW21) who was posted at Police Station Deepar recorded statements of Prabhudayal Singh (PW10), Ganga Singh (PW8), Narendra Singh (PW5) Nathuram Singh (PW9), Veer Singh (PW13), Kapil Singh (PW20) and unexamined persons, namely, Samrath Singh & Shivraj Singh. Accused Balveer Singh and Pappu alias Arvind Singh were arrested vide arrest memo Ex.P7-A & Ex.P8 and their memorandum was recorded u/S 27 of Evidence Act vide Ex.P9 and Ex.P10. From the possession of accused Balveer Singh, one wrist watch vide seizure memo Ex.P11 and from the possession of accused Pappu alias Arvind Singh, one silver ring was seized vide seizure memo Ex.P12. Statements of unexamined persons, namely, Pratap Singh, Smt. Vinama, Bansiram, Geeta, Sardar Singh, Veer Bahadur Singh, 4 Shriram, Kujipal Singh and witness Pulander Singh (PW18) were recorded. Seized articles were sent to FSL, Gwalior and a report from Gandhi Medical College (Forensic Department), Bhopal was received vide Ex.P28 (Page No.59- 62 of paper book). On the basis of identification memo Ex.P17, Tahsildar G.R. Shakya (PW14) identified clothes, ring, shoes and photo of deceased. After completion of investigation and other formalities, the police filed a charge sheet before the Court of JMFC, Seondha, on the basis of which, Criminal Case No.407/2009 was registered from where the case was committed for trial to the Court of Session, Datia.
(4) The statements of accused persons were recorded u/S 313 CrPC. The appellants abjured their guilt and in their defence, they examined Narayan Singh, Bati Ram, Dashrath Singh as DW1, DW2 & DW3. In order to prove its case, the prosecution examined as many as 21 witnesses. The Trial Court vide impugned judgment has convicted and sentenced the appellants for the aforesaid offences as indicated in Para 2 of this judgment.
(5) It is contended on behalf of the appellants that the Trial Court has committed an error in passing the impugned judgment without appreciating the evidence properly. Although the deceased was alleged to be beaten by the 5 accused persons but as per the medical evidence, no injury was found on the body of the deceased which creates the prosecution story doubtful. As seized articles were not proved by the prosecution, therefore, the appellants are entitled for benefit of doubt. No independent witness was examined to support the prosecution story. There is contradiction and omission in some of the material witnesses and some of the witnesses, whose statements were initially recorded by the police, were not examined or produced before the Court. The Trial Court has committed an error in not considering the fact that the presence of the appellants was doubtful as per the evidence of defence witnesses and has passed the impugned judgment only on the basis of interested witnesses and all the witnesses have given their evidence in different stand. Even, PW13 Veer Singh and PW20 Kapil, who are alleged to be eye-witness of the incident, did not corroborate the prosecution version and their evidence is contradictory to each other. Samrath Singh, the husband of appellant Smt. Guddi Bai, has not been examined by the prosecution, who is an important witness. Since there is no conspiracy of the appellants to commit the alleged crime, therefore, the ingredients of offence under Section 120-B IPC are lacking. Therefore, the impugned judgment deserves to be set aside. 6 (6) In continuation, it is submitted on behalf of the appellants that as per the seizure memo, recovery of article i.e. ring said to have been made from the house of accused whereas PW5 Narendra Singh and PW10 Prabhudayal have stated that said ring has been recovered from Nardeshwar Temple. At the time of seizure, the proceedings u/S.100(4) CrPC have not been followed and the recovery of the same has been made in Village Beda whereas no one from Beda has been made witness and no explanation has been offered in this regard. Prosecution has not been able to establish that the deceased used to wear the seized ring and wrist watch. PW10 Prabhudayal has not deposed in his Court statement that which article was identified by him before Tahsildar. Prosecution has also failed to establish the identification proceedings conducted as per law. Deceased died on 02-06-2009 and the ring of deceased said to have recovered on 21-06-2009. Prosecution has produced Veer Singh (PW13) and Kapil (PW20) as eye-witnesses of incident, whereas Veer Singh has not expressed to anybody in respect of incident at Village Kitana. Veer Singh (PW13) has specifically stated about the death of deceased on 1 st whereas the prosecution itself has stated that Ramautar had gone to attend an invitation on 2 nd June, 2009, therefore, in such a situation, an information of death of the deceased on 7 1st become suspicious. Kapil (PW20) had also gone to attend the invitation but he has also not given information of the incident to any person. Veer Singh (PW13) deposed that he had given information of murder of the deceased on phone to his maternal uncle on 1 st and on the other hand, Kapil (PW20) has expressed that he had seen incident on 2nd whereby the statements of both said witnesses appear to be contradictory to each other. Kapil (PW20) in his evidence stated that he returned on a motorcycle on the date of incident, whereas in police diary statement Ex.D1 he makes a contradictory statement regarding his returning on foot. Therefore, Veer Singh (PW13) and Kapil (PW20) are the fabricated eye-witnesses as there are major omissions and contradictions in their police diary statements and the Court statements, therefore, their evidence is unreliable. It is further submitted that where in a murder case, the entire prosecution case depends on the evidence of the persons claiming to be eye-witnesses and these witnesses did not disclose name of assailants for some days after the incident, then the explanation offered for non-disclosure is unbelievable and is a serious infirmity, which destroys the credibility of evidence of witnesses. Therefore, on this ground, the appellants are entitled for benefit of doubt. In support of contention, the counsel for the appellants relied 8 on the judgment of Hon'ble Apex Court in the case of State of Orissa vs. Brahmananda, AIR 1976 SC 2488. The prosecution, in order to prove offence under Section 120-B of IPC, has examined Nathuram Singh (PW9), who in his Court statement, deposed that while he was going to Neemdada, he did not see that the appellants were talking each other and did not know that the appellants are making any conspiracy and in his cross-examination, this witness also did not say anything against the appellants. It is further clear from the evidence of prosecution witnesses that since the accused did not hatch a conspiracy to commit murder of deceased and the prosecution has utterly failed to prove conspiracy prior to commission of murder of deceased, therefore, the appellants- accused cannot be held to be liable for offence u/S 120-B IPC. In support of contention, the counsel for the appellants relied on the judgments of Hon'ble Apex Court in the case of State of Kerala vs. P. Sugathan & Anr. (2000) 8 SCC 203, Damodar vs. State of Rajasthan, (2004)12 SCC 336 and Baliya alias Bal Kishan vs. State of MP, (2012) 9 SCC 696.
(7) In response, the counsel for the State supported the impugned judgment and submitted that the testimony of witnesses in a criminal trial cannot be discarded merely because of minor contradictions and omissions and 9 witnesses may forget certain details with passage of time. Prosecution is not bound to produce all the witnesses and material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In the present matter, the material witnesses have specifically deposed in their evidence regarding the place, date and time of occurrence, the manner of assault and given detailed description of the entire scenario and the Trial Court has analyzed their evidence found to be credible, cogent and trustworthy. Further, there is no doubt or confusion regarding the cause of death of deceased as the same has been clarified by medical evidence. Therefore, the question of deceased having caused death by conspiracy of accused persons by throttling his neck is fully established by prosecution. That being the position, there being no infirmity in passing the impugned judgment by the Trial Court and, therefore, there is no scope for interference. Hence, prayed for dismissal of these appeals. (8) It is relevant to mention here that Prabhudayal (PW10) is the father-in-law, Narendra Singh (PW5) is brother-in-law (Devar) and unexamined person Samrath Singh is husband of appellant Smt. Guddi Bai and deceased Ramautar is elder brother (jeth of appellant Smt. Guddi Bai) 10 of deceased. It was alleged that there was an illicit relationship between appellant Smt. Guddi Bai with appellant Balveer Singh and the same was opposed by deceased Ramautar as a result of which a dispute was created between deceased and appellant Smt. Guddi Bai and appellant Balveer Singh. One day before the incident i.e.01-06-2009, there was a marriage ceremony of Sangeeta, the sister of appellant Smt. Guddi Bai and on the said date, appellant Smt. Guddi had gone alone to attend the marriage ceremony and deceased had objected for not going outside and on this issue, a quarrel took place between the deceased and appellant Smt. Guddi Bai whereby, appellant Guddi Bai threatened him saying that she will see him. It was further alleged that on 02-06-2009, the deceased told his father Prabhudayal Singh (PW10) that appellant Smt. Guddi Bai has called him and thereafter, the deceased did not return. (9) We have heard learned counsel for the parties and perused materials available on record and also gone through the evidence of material prosecution witnesses. (10) Prabhudayal (PW10) who is the father-in-law of appellant Smt. Guddi Bai as well as the father of deceased, in paragraph 4 of his evidence, deposed that the police had brought him to the hospital and after some days, also brought him before Tahsildar where he had identified some 11 articles of his son deceased and put his signature on Ex.P17 from ''A to A''. This witness further deposed that he was informed about the death of his son deceased from Ojha Sahab. This witness further deposed that both Veer Singh and Kapil, residents of Lalpura and Kheriya told him regarding murder of the deceased that when both of them were returning from Neemdada Panth, at that time, Balveer, Pappu and his daughter-in-law Guddi Bai were strangulating Ramautar by means of safi on the way near to school and both Veer Singh and Kapil told this fact to him after two days i.e. on 4th and thereafter, this fact has been narrated by him to the police. This witness in his cross- examination told that the incident was narrated by Veer Singh from Neemdada on phone at around 08:00- 09:00 O' clock on 4th. This witness in paragraph 6 of his cross- examination deposed that police namely Ojhaji did not tell anything to him. When he met Veer Singh at Neemdada, Veer Singh did not tell anything to him. When he had gone to Neemdada on a jeep, Kapil of Lalpura also did not meet him. This witness in paragraph 13 of his cross-examination deposed that his son deceased had gone at around 08:00 in the morning to Neemdada and a phone call was received on 3rd at around 08:00 in the morning whereupon the lady Sarpanch told him about murder of Ramautar and at that 12 time, he was in his house and thereafter he immediately rushed to Neemdada and came to Police Station Seondha. (11) Veer Singh (PW13) in his evidence deposed that when he reached midway of Neemdada and Kitana, he saw that accused Balveer and Pappu were pulling the neck of deceased and when he stopped them, they did not pay any heed and threatened to kill him. He returned back to home due to fear and afterwards, informed about the incident to Prabhudayal (father of deceased). This witness deposed that he did not make statement to the police. In para 3 of his examination, this witness deposed that the accused persons were beating the deceased. He cannot state when and how the deceased reached the place of incident. Kapil belonging to Lalpura was also accompanied with this witness. In para 4, this witness deposed that he had gone to the house from Neemdada via Kitana and he did not narrate about the incident to anybody in Kitana. This witness also disposed that he did not know the people of his community residing in Kitana. This witness further deposed that one portion of safi was held by Balveer and another portion of Safi was held by Pappu and the deceased did not scream before him. In para 5 of his examination, this witness deposed that he cannot offer any reason why he did not go to the police station. He did not narrate about the incident to anybody in 13 Village Kheriya.
(12) Kapil (PW20) in paragraph 2 of his examination deposed that the accused persons had strangulated deceased with a white towel. On his screaming, they also threatened him. The accused persons told that the same treatment shall be given to him, as given to the deceased. This witness also deposed that he did not do anything and stated this fact at his house. After six-seven days, Prabhudayal came to his house and he told this fact to him. In para 4 of his cross- examination, this witness deposed that Veer Singh belonging to Village Kheriya met him on the way. He did not remember that at what time he arrived Neemdada. There was marriage ceremony of son of Kaulendra Singh on 02- 06-2009 in Neemdada. He reached Lalpura at about 09:00- 10:00 in the night. In paragraph 7 of his cross-examination, this witness deposed that he had made statement to police after six- seven days of the incident. He also denied in para 7 of his cross-examination that he had made statement after 15-16 days of the incident. This witness had made statement first time at police station Mangrol after six- seven days of the incident when Prabhudayal called him. A suggestion was given to this witness as to whether he had told to his parents about the incident, this witness gave an answer in negative. In para 22 of his cross-examination, 14 this witness stated that Prabhudayal had brought him to Police Station Mangrol and Prabhudayal got him examined. (13) PW21 Alok Singh who was posted as SHO at Police Station Deepar, in his evidence, deposed that the inquest investigation and preliminary investigation in the case were conducted by ASI Ojha. During investigation, witnesses Kapil Singh, resident of Lalpura and Veer Singh Chauhan, resident of Kheriya, were interrogated and they are the eye- witnesses of the incident. In para 6 & 7, this witness deposed that from the possession of accused Balveer Singh, one wrist watch and from the possession of accused Pappu alias Arvind Singh, one silver ring were seized vide seizure memo Ex.P11 and Ex.P12. In para 15 of his cross- examination, this witness deposed that on 10-06-2009, he received the diary and the same was remained with him for investigation till 21-06-2009. This witness did not remember at which place he had recorded the statement of Prabhudayal. He also did not remember at which place he had recorded statement of Narendra Singh. He stated that he cannot narrate about the time and place of recording of any statement. In paragraph 27 of his cross-examination, this witness deposed that the wife of Narendra resides in Village. Prabhudayal (father of Narendra) told him that Veer Singh and Kapil both are the witnesses to the incident. This 15 witness stated that in the statement recorded on 17-06-2009 he came to know that who have seen the incident. This witness in para 28 denied that Veer Singh is the real nephew of Prabhudayal. Prabhudayal and Narendra deposed this fact in their statements that Kapil and Veer Singh had seen the incident. In para 29, this witness deposed that he had made Balveer, Guddi and Pappu as accused on the basis of statements of Narendra and Prabhudayal because Kapil and Veer Singh are the eye-witnesses.
(14) PW5 Narendra Singh, in para 2 of his examination, deposed that murder of his brother was committed in Neemdada. He also deposed that he came to know that the murder of his brother has been committed by strangulation by Balveer and Pappu. Balveer and Pappu used to come to Smt.Guddi Bai and his elder brother deceased objected to it. In para 6 of his cross-examination, he deposed that Veer Singh is the nephew of his father and Kapil is the nephew of Veer Singh. He also deposed that Kapil, Veer Singh and his father Prabhudayal were relatives. This witness in para 10 deposed that he had made his statement to police after arrest of accused Pappu. This witness in para 13 deposed that his father had informed him on mobile about murder of Ramautar on 4th at around 07:00 in the morning. On receiving the information, he immediately left Ahmadabad 16 and reached his house. His father Prabhudayal discussed with him for two hours and thereafter, his father informed him about murder of Ramautar. This witness denied that there was any illicit relationship between the deceased and his wife and on account of this, he had kept his wife at Ahmadabad. He also denied that a quarrel used to occur on this account between him and the deceased.
(15) It appears that testimony of this witness is a hearsay evidence and as per the Indian Evidence Act, his evidence is not admissible.
(16) Dr. Anand Unaya (PW11) Surgeon, Civil Hospital, Seondha, in his evidence, deposed that on 03-06-2009 he conducted autopsy of deceased and opined that the death of deceased was due to asphyxia and cause of death was due to strangulation of neck and the duration of death was approximately 24 - 48 hours. As per the pm report, except a ligature mark, size of 4 cm on the neck of deceased, no other injury was found on the body of deceased. (17) In order to lead evidence, appellants have examined Narayan Singh as DW1, Bati Ram as DW2 and Dashrath Singh as DW3 and all the said witnesses have supported the defence evidence.
(18) So far as the ''law of conspiracy'' is concerned, the Hon'ble Apex Court in the case of Damodar (supra) has 17 held as under:-
''14. It was noticed that Sections 120-A and 120-B IPC have brought the law of conspiracy in India in line with English law by making an overt act inessential when the conspiracy is to commit any punishable offence. The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would he held guilty under Section 120-B of the Indian Penal Code.'' Similarly, in the matter of P. Sugathan (supra), the Hon'ble Apex Court has held as under:-
''11. Section 120B prescribes the punishment for criminal conspiracy which by itself is an independent offence, punishable separately from the main offence. The offence of criminal conspiracy can be established by direct evidence or by circumstantial evidence. Section 10 of the Evidence Act introduces the doctrine of agency and will be attracted only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable ground, that is say, there should be a prima facie evidence that the person was a party to the conspiracy before his acts can be used against the co-conspirators. This Court in Bhagwan 18 Swarup Lal Bishan Lal vs. State of Maharashtra [AIR 1965 SC 682] held that the expression "in reference to their common intention" in Section 10 - is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; with the result, anything, said, done or written by a co- conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is relevant fact only "as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it". It was further held:
''In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour."
12. We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of purpose in common between the conspirators.
This Court in V.C. Shukla v. State [1980(2) SCC 665] held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the 19 commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances giving rise to a conclusive or irresistible inference of an agreement between the two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
13. In Kehar Singh vs. State [AIR 1988 SC 1883] it was noticed that Section 120A and Section 120B IPC have brought the Law of Conspiracy in India in line with English Law by making an overt act inessential when the conspiracy is to commit any punishable offence. The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In case where criminal conspiracy is alleged, the court must enquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not to be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. 20
During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120B of the Indian Penal Code.'' (19) Murder committed as a result of conspiracy and the act of conspiracy are two different things and the actual act of murder cannot be the evidence of conspiracy. In this regard, the Hon'ble Apex Court in the case of Baliya alias Bal Kishan (supra) has held as under:-
''16. We have already held that in the present case, from the evidence of PWs 8 and 11, the prosecution has succeeded in establishing the conversation between the accused persons and Dr. Sandhya Swami details of which need not be repeated. In coming to the above conclusion, we had considered the arguments advanced on behalf of the accused that the said fact is inherently improbably as such a conversation is alleged to have occurred in a busy market place and the exchanges are reported to have been in a loud voice within the hearing of the people in the immediate vicinity, like PWs 8 and 11. Balancing the totality of the facts and keeping in mind the strata of society to which the accused persons belong/belonged it will be difficult to disbelieve what has been stated by the prosecution witnesses in a clear and cogent manner merely on the assertion that such an event is impossible. However, even accepting the prosecution version what reasonably follows therefrom is that Dr. Sandhya Swami had complained to accused Balia that her reputation has been smeared because of the pamphlet; that accused Balia had stated that he knew who was the author of the pamphlet and further that he had stated to accused Manish and Gopal that the author of the pamphlet (deceased Pradeep) should be killed. But what is conspicuous by its absence is the essential meeting of minds between accused Balia, Manish and Gopal to commit the murder of the 21 deceased. No evidence is forthcoming as to what was the response of accused Manish and Gopal to the statement made by Balia to the effect that the author of the pamphlet must be done away with. In the absence of any material to establish the said fact the vital chain or link to enable us to satisfy ourselves with regard to an agreement or meeting of minds amongst the accused to commit the murder of deceased Pradeep is lacking. The alleged participation of the accused in the commission of the actual act of murder cannot be evidence of the conspiracy in as much as the commission of murder must be the result of the conspiracy already hatched. The alleged acts attributed to the accused insofar as the offence of murder is concerned, naturally, has to be considered separately in order to determine the liability of the accused for the said offence.'' (20) On scanning testimony of Prabhudayal (PW10), who is the father of deceased and is not an eye-witness of the incident, on the one hand, in his Court statement, deposed that he was informed about the death of deceased from police Ojha Sahab and on the other hand, in para 6 of his cross-examination, he deposed that Ojhaji did not tell anything to him. Similarly, on the one hand, he deposed that witnesses Veer Singh and Kapil informed about incident after two days i.e. on 4 th and thereafter, he narrated the same to police and on the other hand, in paragraph 13 of his cross-examination, he deposed that on 3 rd at around 08:00 am, the lady Sarpanch informed him about murder of his son deceased. It appears that there are some contradictions and omissions in the evidence of this 22 witness. Both Veer Singh (PW13) and Kapil (PW20) who are alleged to be eye-witness of incident did not narrate anything either to the parents of deceased nor any other person of the locality or police and they remained silent for a period of near about six days. Similarly, the testimony of PW5 Narendra Singh (devar of appellant Smt. Guddi Bai) is hearsay evidence and as per the provisions of Indian Evidence Act, his evidence cannot be said to be reliable.
Apart from above, unexamined person, namely, Samrath Singh (husband of appellant Smt. Guddi Bai) who is an important witness as initially his statement was recorded by Police, has not been produced by prosecution before the Court. In addition, some of witnesses whose statements were also recorded initially by police have not been examined or produced before the Court. Prabhudayal (PW10) did not depose in his evidence that which article was identified by him before the Tahsildar. Therefore, the circumstantial evidence produced by the prosecution is not sufficient to connect the appellants with the alleged crime. There is sufficient reason to disbelieve the statements of above-said witnesses. Besides their ocular testimony, there is no sufficient corroborative evidence available on record to connect the appellants in the alleged offence. Only recovery of ring and wrist watch from the possession of 23 accused, at their instance by itself, will not be sufficient to hold the appellants guilty of aforesaid offence. Even as per the medical evidence, except a ligature mark, no other injury was found on the body of deceased and there is a suspicion on the cause of death of deceased. (21) Applying the law laid down by Hon'ble Apex Court in the above cited cases, it is clear that prosecution, in the present matter, has utterly failed to prove the conspiracy prior to murder of deceased. Therefore, the alleged act is not attributed to the appellants insofar as the offence of murder of deceased is concerned. The appellants, are, therefore, entitled for benefit of doubt. In view of the aforesaid, we are of the view that the conviction of appellants u/Ss. 302/34, 120-B of IPC is not sustainable in the eyes of law.
(22) In the result, all the three Criminal Appeals preferred by appellants Balveer Singh, Pappu alias Arvind Singh and Smt.Guddi deserve to be and are hereby allowed. The impugned judgment of conviction and order of sentence dated 5th January, 2011 passed by Additional Judge to the Court of Second Additional Sessions Judge (Fast Track Court), Seondha, District Datia (MP) in ST No.103 of 2009 is set aside. The aforesaid appellants are acquitted of offences for which they were charged. They be set at liberty 24 forthwith unless their custody is required in connection with any other case.
A copy of this judgment be sent to the Jail concerned as well as a copy of this judgment along with record be sent back to the Court below for necessary information.
(G. S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
MKB
Digitally signed by MAHENDRA
BARIK
Date: 2022.04.21 16:49:42 +05'30'