Madhya Pradesh High Court
Nandlal @ Nandram vs State Of M.P. on 25 May, 2017
Author: S. K. Awasthi
Bench: S. K. Awasthi
(1) CRA 685/2006
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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DB:- Hon'ble Shri Justice N. K. Gupta &
Hon'ble Shri Justice S. K. Awasthi
CRA 685/2006
Nandlal alias Nandram
Vs.
State of Madhya Pradesh
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Ms. Sudha Shrivastava, counsel for the appellant.
Shri JM Sahni, Panel Lawyer for the State/ respondent.
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JUDGMENT
(Delivered on 25/05/2017) Per Justice N. K. Gupta:-
The appellant has preferred the present appeal against the judgment dated 26/07/2006, passed by 11 th Additional Sessions Judge (FTC), Gwalior in Sessions Trial No. 97/2006, whereby the appellant has been convicted of offence under Section 302 of IPC and sentenced to life imprisonment.
(2) The prosecution's case, in short, is that on 21/05/2005 at about 09:00 pm the deceased Nattharam along-with his mother Lachcho Bai (PW2), brother Harnam (PW1) and Ramswaroop (PW13) were talking relating to marriage of Harnam. At about 09:00 pm, the appellant Nandlal called the deceased Nattharam and took him towards the pond of Veerpur. The appellant Nandlal talked with the deceased Nattharam that his payment of Rs.5,000/- shall be paid without any delay. However, thereafter Nattharam did not come back to his house. In the night Harnam along-with Ramswaroop went in search of the deceased Nattharam. Initially, they went to the house of appellant Nandlal but it was found locked. At at bout 06:00 am, the appellant Nandlal was found coming from the side of Veerpur pond. When he was asked about the deceased Nattharam then he told that he had killed the deceased Nattharam. Thereafter, Harnam (PW1) and Lachcho Bai (PW2) searched the deceased (2) CRA 685/2006 Nattharam. They found that the dead body of the deceased Nattharam was lying near the pond and bloodstains were found on various articles. A stone was also lying on the spot which was bloodstained. Harnam went to the Police Station Madhoganj, Gwalior and lodged the FIR Ex.P1. The Investigating Officer PK Saraswat (PW14) went to the spot and after performing the various formalities, sent the dead body of the deceased Nattharam for postmortem. Dr.JN Soni (PW15) performed the postmortem on the body of the deceased and gave a report Ex.P31. According to Dr. Soni, the deceased died due to head injuries.
(3) The Investigating Officer PK Saraswat (PW14) went to the spot and prepared a spot map Ex.P4. He took various articles from the spot like old passbook, telephone diary, a broken piece of baniyan, two buttons, one thread, one broken dot pencil, three remains of bidis, one stone which was bloodstained, one piece of cream roll, two empty quarters of liquor, bloodstained soil and plain soil. Also, he recovered some burnt clothes from the back of a temple. All such articles were recovered and a seizure memo Ex.P6 was prepared. The appellant Nandlal was arrested and an arrest memo Ex.P5 was prepared. On interrogation, he gave a confessional statement which was recorded as Ex.P10. Thereafter, recovery of various articles was done by the Investigating Officer from the appellant Nandlal by a recovery memo Ex.P8. A ''dhariya'' (sharp- edged weapon), a shirt having cross check design and a packet of Alprazolam drug in which one tablet was found, were recovered from the appellant. Again, jeans pant which was worn by the appellant Nandlal at that time was also recovered because some bloodstains and soil were found on the bottom of that full pant and a recovery memo Ex.P9 was prepared. All the articles which were taken from the spot, received from the hospital and seized from the accused persons were sent for Forensic Science Examination. The other accused persons Lekha and Shiv Singh were arrested and it was found that a stamp was purchased in (3) CRA 685/2006 the name of the deceased Nattharam from Stamp Vendor Gaurishankar Chouhan (PW10) and such stamp was recovered from the accused Shiv Singh. It was also found by the Investigating Officer that before completing the crime, the appellant Nandlal and other accused persons had purchased some biscuits and cream roll from one Rajkumari (PW3). After due investigation, the charge-sheet was filed before the Additional Chief Judicial Magistrate, Gwalior who committed the case to the Court of Session and ultimately, it was transferred to the XI Additional Sessions Judge, Gwalior.
(4) The appellant abjured his guilt. He did not take any specific plea. However, Constable Baburam Rathore (DW1) was called with a Case Diary to show as to when the statements under Section 161 of CrPC of Harnam (PW1) and Lachcho Bai (PW2) were recorded by the Investigating Officer.
(5) The trial Court, after considering the evidence of the prosecution, acquitted the accused Lekha and Shiv Singh but convicted the appellant Nandlal for the offence under Section 302 of IPC on the basis of circumstantial evidence and sentenced him, as mentioned in para one of the judgment.
(6) We have heard the learned counsel for the parties at length.
(7) First of all, it is to be considered as to whether the death of the deceased Nattharam was suicidal in nature or not? In this connection, Dr. JN Soni (PW15) is examined, who proved the postmortem report Ex.P31. According to Dr. JN Soni (PW-15), the deceased sustained following injuries:-
"(1) Lacerated wound right eyebrow 3x1 cm skin deep.
(2) Abrasion mid of forehead 5x1 cm hammer.
(3) Lacerated wound left eyebrow medially 1x1cm skin deep.
(4) Lacerated wound right side of forehead near hairline 1x1 cm skin deep.
(5) Lacerated wound lower lip 1x 0.5 cm muscle deep.(4) CRA 685/2006
(6) Abrasion over chest to lower abdomen, multiple small in size.
(7) Abrasion left scapular region 10x 6 cm vertical . (8) Abrasion left subcartal region 3x 2 cm.
(9) Abrasion on left greater trochanter 5 x1cm vertical."
According to Dr. JN Soni, rigor mortis was present on the entire body of the deceased. The injuries caused on the head were mainly responsible for the death of the deceased. One fracture was found below parietal bone and blood was clotted below the meninges. Brain was also affected so that lungs were found swollen. In stomach, sticky liquid was found from which sweet- smell was coming out. According to Dr. JN Soni, the deceased died due to head injuries and such injuries could be caused by the hard and blunt object. The death of the deceased Nattharam was homicidal in nature and he would have died between 24 - 48 hours prior to the date and time of the postmortem. Looking to the various injuries, those were caused on back as well as on the front of his body. The injuries were found on his head and eyebrow. Abrasions were found on the left thigh also. Hence, such multiple injuries could not be caused in an accident. Also such injuries could not be self-inflicted. Under these circumstances, death of the deceased Nattharam was neither accidental nor suicidal and, therefore, opinion given by Dr.JN Soni is acceptable that the death of the deceased was homicidal in nature and the injuries were sufficient to cause his death.
(8) In the present case, there is no eye-witness and the entire case depends upon various circumstances and, therefore, it would be appropriate to consider each and every circumstance one by one. First circumstance, as alleged by the prosecution, is the fact of last seen. Harnam (PW1) and Lachcho Bai (PW2) have stated that on 21/05/2005 at about 09:00 pm the appellant Nandlal had come to the house of Lachcho and called for the deceased Nattharam. Nattharam went out of the house and went with the appellant. Thereafter when he did not come back (5) CRA 685/2006 upto 12 O'clock in the night then Harnam (PW1) and Ramswaroop (PW13) started searching the deceased Nattharam. Harnam and Lachcho have stated that the appellant Nandlal had assured that he would provide the deceased Nattharam a sum of Rs. 5,000/- which was kept with the co- accused Shiv Singh and Lekha. However, it would be apparent that the statements of Harnam (PW1) and Lachcho (PW2) under Section 161 of CrPC were recorded by the Investigating Officer when the dead body of the deceased Nattharam was recovered and, therefore, these two persons were in a position to cook the story. However, it is apparent that according to the witness Lachcho, the appellant Nandlal took the deceased Nattharam at about 06:00 pm. Lachcho Bai (PW2) has stated in para 1 that the deceased was taken at about 06:00 pm in the evening by the appellant Nandlal whereas Harnam (PW1) has stated that the appellant Nandlal had visited his house for several times and at about 09:00 pm he found that the deceased Nattharam was present in the house and, thereafter he took the deceased Nattharam. If the deceased Nattharam was taken at about 09:00 pm then as to why the witness Lachcho Bai (PW2), mother of the deceased is under confusion that the deceased Nattharam was taken at about 06:00 pm. According to Harnam (PW1), when the appellant Nandlal called the deceased Nattharam at that time he and Nattharam were taking their dinner and, therefore, according to Harnam, Nattharam went after taking dinner whereas Dr.JN Soni (PW15) who performed the postmortem on the body of the deceased Nattharam found 100cc of liquid from which a sweet-smell was coming out. No food was found in his stomach which clearly indicates that Nattharam was not taken by the appellant Nandlal in the presence of witness Harnam (PW1). He is telling a falsehood.
(9) Dr. JN Soni (PW15) has performed the postmortem on the body of the deceased Nattharam on 22/05/2005 at about 11:00 pm and he had opined that looking to the rigors mortis and other (6) CRA 685/2006 indications, the death of the deceased Nattharam would have been caused between 24-48 hours prior to the postmortem and according to him, the deceased had died before 11:00 am of 21/05/2005 and, therefore, possibility cannot be ruled out that the dead body of the deceased Nattharam was lying near a pond since the previous night of 21/05/2005 and looking to the time of death, if it is found that the deceased Nattharam had already died, at the time when it is claimed by Harnam and his mother Lachcho Bai that appellant Nandlal took the deceased Nattharam on 21/05/2005, then evidence of Harnam and Lachcho cannot be accepted to be true and it is not proved beyond doubt that the appellant Nandlal took the deceased Nattharam with him. The trial Court has committed an error in accepting that the fact of last seen was duly proved.
(10) The police has created a story that since the deceased Nattharam had to get a sum of Rs.5,000/-, therefore, he was taken. A stamp paper was purchased from Stamp Vendor Gaurishankar Chouhan (PW10) by the appellant Nandlal. Thereafter, some ink etc. was found on the jeans of the appellant Nandlal with the reason that after taking the thumb impression of the deceased Nattharam on a blank stamp paper, he would have rubbed his hands on his pant and thereafter the deceased Nattharam was killed. One corollary was added that before getting his thumb impression he was administered with a tranquilizer Alphrazolam and when he became unconscious his thumb impression was taken and thereafter, he was killed. It is true that in report Ex.P32-A given by the Forensic Science Laboratory, the aforesaid tranquilizer was found in the viscera of the deceased and hence, Dr.JN Soni (PW15) has found that the liquid which was found in the abdomen of the deceased was giving a sweet-smell at the time of postmortem. It is proved that the deceased was given a tranquilizer with the help of some biscuits and cream roll. However, it was for the prosecution to prove that it was the appellant who purchased the biscuits or cream roll but the witness Rajkumari (PW3) has turned hostile (7) CRA 685/2006 and she did not accept that such articles were purchased by the appellant Nandlal from her.
(11) Similarly, it was for the prosecution to prove that transaction of Rs.5,000/- was between the deceased Nattharam and the appellant Nandlal. Possibility cannot be ruled out that since a stamp paper was seized from the accused Shiv Singh it should have been thought by the Investigating Officer that such stamp was prepared by the appellant Nandlal. In this connection, Stamp Vendor Gaurishankar Chouhan (PW10) was examined who proved that one stamp was sold in the name of the deceased Nattharam and someone else had appended signature in his register. However, he was not definite that stamp was purchased by the appellant Nandlal or anyone else. Under these circumstances, the prosecution has failed to prove that the stamp which was recovered from the accused Shiv Singh was purchased by the appellant Nandlal. It could not be proved by the prosecution that it is for the appellant to return a sum of Rs.5,000/-to the deceased Nattharam. If thumb impression is taken with the help of a ink pad then there is possibility that due to excessive ink it was necessary for the appellant Nandlal to clean his hands and to rub his hands with jeans pant. According to the seizure memo Ex.P6 various articles were seized from the spot like broken dot pencil and a working dot pencil. If thumb is made coloured with the help of dot pencil then there is no possibility that marks of the ink were excessive and those could be found on the clothes of the deceased or the accused. Hence, such theory of having ink spots on the clothes of the deceased Nattharam or on the pant of the appellant cannot be accepted. Since one broken lead pencil and one lead pencil were found at the spot. Such type of story would have been cooked.
(12) If the stamp was found with the accused Shiv Singh then it was easy for the prosecution to prove that the seized stamp contains a thumb impression of the deceased Nattharam. But the stamp was never referred to any expert even that stamp (8) CRA 685/2006 was not shown to any witness before the trial Court to connect the appellant with that stamp whereas the stamp was recovered from the accused Shiv Singh who was acquitted by the trial Court. Under these circumstances, the prosecution has utterly failed to prove its story that the appellant Nandlal was the person who had purchased the stamp paper from Stamp Vendor Gourishankar Chouhan (PW10) and he was the person who killed the deceased for making a document after giving him some tranquilizer. If it was found by Dr.JN Soni (PW15) that some tranquilizer was found in the stomach of the deceased then it was very easy for the investigating officer to get such tablet recovered from the appellant accused. In this connection, if the seizure memo Ex.P8 may be examined minutely then it would be apparent that in that seizure memo two entries relating to shirt and dhariya were done in different handwritings and, thereafter, third entry of tablet Alphrazolam was entered in a different ink and handwriting, which clearly indicates that seizure memo was interpolated after making of such seizure of articles. It was surprising that the Investigating Officer, SHO Shri PK Saraswat (PW14) did not take any independent witness for seizure memo Ex.P8. Ramswaroop (PW13), cousin of the deceased Nattharam and Harnam(PW1) the complainant, were taken as witnesses of such recovery and conduct of Shri PK Saraswat clearly indicates that he did not want to take any independent witness while making the recovery and hence, if the aforesaid interpolation is considered, then it would be apparent that no tablet of Alphrazolam was recovered from the appellant Nandlal initially and that entry was added thereafter by arranging one tablet Alphrazolam by the Investigating Officer, Shri PK Saraswat.
(13) Under these circumstances, the prosecution has failed to prove that for purchase and preparation of a document on stamp paper the appellant Nandlal was responsible. Similarly, the prosecution has failed to prove that the appellant was the person who administered tranquilizer Alphrazolam to the (9) CRA 685/2006 deceased Nattharam before causing his death.
(14) It is also proved by the SHO PK Saraswat (PW14) that one shirt and one weapon of crime was recovered from the appellant Nandlal by a document Ex.P8. However, if the evidentiary value of seizure memo Ex.P8 is considered, in the previous para, i.e. the Investigating Officer has taken interested witnesses, the same is not acceptable. However, if in this connection, the report given by Forensic Science Laboratory Ex.P33-A is considered, then according to that report Article "J" was dhariya recovered from the appellant Nandlal and on investigation no human blood was found on that dhariya, however, blood was found on the shirt but it could not be conclusively obtained in the examination that blood found on the dhariya was of human source. Also, it is pertinent to note that all the injuries of the deceased Nattharam were caused by hard and blunt object and, therefore, if the appellant would have assaulted from the blunt side of that dhariya then such big injuries could not be caused to the deceased Nattharam whereas blade of dhariya is not so thick and in such a case, where it is alleged that the appellant assaulted the deceased Nattharam by back of that dhariya then bloodstains at the very small surface could not be found. Hence, recovery of weapon has no evidentiary value in that case.
(15) Similarly, a shirt is shown to be recovered from the appellant Nandlal by a seizure memo Ex.P8 with the pretext that it was stained with blood and it contains few buttons and two buttons were found missing. It is also stated by the Investigating Officer PK Saraswat (PW14) that he recovered various articles from the spot with a recovery memo Ex.P6 and those two buttons were found at that spot. However, when SHO PK Saraswat (PW14) was examined before the Court neither he was found in possession of the shirt or buttons to compare that the buttons seized from the spot were the same which were of the shirt of the appellant Nandlal. It was necessary for the Investigating Officer to make a comparison memo that buttons (10) CRA 685/2006 found from the spot were of the appellant Nandlal. Also, when there is a story that the deceased Nattharam was given a tranquilizer through a cream roll or biscuits then thereafter his thumb impression was taken on a stamp paper, then whether the deceased Nattharam was in a position to have struggle with the culprits, there was no possibility that buttons of the culprits would have been released from his shirt and could be found on the spot. Under these circumstances, where no comparison was made either by the trial Court or the Investigating Officer it cannot be said that the buttons obtained by the Investigating Officer from the spot were of the shirt of the appellant Nandlal and, therefore, such evidence does not create any circumstance against the appellant Nandlal.
(16) The Investigating Officer, PK Saraswat (PW14) in all the various seizure memos took the witnesses Harnam (PW1) and Ramswaroop (PW13) who were close relatives of the deceased Nattharam and, therefore, evidentiary value of the Investigating Officer PK Saraswat (PW14) goes away. He did not fairly investigate the matter and, therefore, it cannot be accepted that such articles which were shown to be recovered from the appellant Nandlal were actually recovered from the appellant. For example, by seizure memo Ex.P8, he recovered a shirt and a dhariya from the appellant Nandlal on 22/05/2005 at about 06:30 pm. On that time of seizure if he thought that the appellant Nandlal was wearing a jeans pant containing some stains of blood and spots of soil of the place of the incident then there was no problem to SHO to recover that jeans pant by recovery memo Ex.P8 itself. What was the reason as to why the full pant was recovered by a separate recovery memo Ex.P9 at about 07:00 pm in the evening i.e. after half an hour. It is the settled procedure of the investigation that when the accused is arrested then every article which is found on his person should be checked and seized, if required. Hence, when the appellant Nandlal was arrested at 06:00 pm by a memo Ex.P5, then it was for the Investigating Officer to see the spots of blood or soil on (11) CRA 685/2006 the jeans pant of the appellant and such seizure should have been done immediately after arrest of the appellant Nandlal or he would have seized that full pant along-with shirt etc. seized from the appellant Nandlal by a seizure memo Ex.P8. Possibility cannot be ruled out that after completion of seizure Ex.P8, the SHO could be provided jeans pant by Harnam (PW1) or Ramswaroop (PW13) and thereafter, it was specially seized with the pretext that it contains blue ink at several places. As discussed above, such ink would not spread on the hands of the appellant if he took the thumb impression of the deceased with the help of dot pencil and hence, such ink marks could not be caused on the jeans pant of the appellant Nandlal and, therefore, it was for the prosecution to prove that the pant which was shown to be recovered from the appellant Nandlal was of the appellant Nandlal.
(17) it is strange that SHO PK Saraswat (PW14) took the interested witnesses Harnam (PW1) and Ramswaroop (PW13) in the aforesaid seizure but still Ramswaroop has turned hostile he did not prove any of the seizure done by the SHO PK Saraswat. Under these circumstances, the trial Court has committed an error in accepting the seizure and consequential result of the Forensic Science Laboratory report on the basis of that seizure to convict the appellant.
(18) In this connection, the learned Panel Lawyer has submitted that in the report of Forensic Science Laboratory Ex.P33-A, Article "H1" was found stained with human blood and it was piece of clothes recovered from the appellant Nandlal. If it is considered with other documents then it would be apparent from the letter Ex.P31 written by the SP, Gwalior to Forensic Science Laboratory that the Article "H'' as shown to be referred to Forensic Science Laboratory, was a stone having bloodstains, whereas Article "J" was of the piece of clothes recovered from back of the Temple. It is possible that the Scientist of Forensic Science Laboratory considered those Articles to be ''H1'' and ''H2'' whereas those articles were referred to Forensic Science (12) CRA 685/2006 Laboratory as Article "J". If source of that Article "J" is considered, then it is mentioned as item no.14 in seizure memo Ex.P6 in which it is mentioned that some burnt clothes were found behind the temple. In that entry No.14 it was not at all mentioned that such clothes were of the appellant Nandlal. However, either by mistake or mischief in letter Ex. P31 such pieces of clothes were shown to be of the appellant whereas there is no evidence that some burnt clothes recovered from the back of the temple were of the appellant Nandlal and therefore, such report Ex.P33A in which it is mentioned that Article ''H1'' was stained with human blood has no meaning. Similarly, in that report, it is mentioned that full pant of the appellant Nandlal have stains of human blood but as discussed above relating to recovery of that full pant, it could not be established that such full pant was recovered from the appellant Nandlal. Hence, the report of Forensic Science Laboratory relating to full pant cannot be considered against the appellant.
(19) Under these circumstances, chain of circumstantial evidence is broken. It is not proved beyond doubt that the appellant was the person who took the deceased Nattharam with him. Possibility cannot be ruled out that the dead body of the deceased Nattharam was lying near a pond since 11:00 am of 22/05/2005 and story of Harnam (PW1) and Lachcho (PW2) is not proved beyond doubt that the appellant Nandlal took the deceased Nattharam with him. No recovery could be proved beyond doubt that any shirt was recovered from the appellant in which two buttons were missing or those two buttons were lying at the spot. The appellant could not be connected with the stamp paper which alleged to have been recovered from the accused Shiv Singh. No seizure was proved beyond doubt to say that bloodstains were found on the clothes or weapon of the appellant. No enmity could be shown between the appellant and the deceased so that the appellant would have killed the deceased. It was not proved beyond that any tablet of Alphrazolam was recovered from the appellant. However, if one (13) CRA 685/2006 tablet was recovered from the appellant then it cannot be said that batch number and packet number of tablet was same which administered to the deceased Nattharam. Hence, the chain of circumstantial evidence is broken. There is no reason to observe that the appellant was the person who killed the deceased Nattharam.
(20) The trial Court has committed an error in considering that the chain of circumstantial evidence was complete. It was a case of acquittal due to tainted investigation. Under such circumstances, the appeal filed by the appellant appears to be acceptable and consequently, it is accepted. The conviction as well as sentence recorded by the trial Court for the offence under Section 302 of IPC against the appellant is hereby set aside. The appellant is acquitted from the aforesaid charge.
(21) The appellant is in jail. The Registry is directed to issue a release warrant without any delay so that the appellant be released forthwith.
(22) A copy of this judgment be sent to the Court below along- with its record for information.
(N. K. Gupta) (S. K. Awasthi)
Judge Judge
25/05/2017 25/05/2017
MKB