Madhya Pradesh High Court
Ishwar Singh And 05 Ors. vs The State Of Madhya Pradesh on 26 March, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
Cr.Appeal No.1214 of 2010
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Cr.Appeal No.1214/2010
1. Ishwar Singh s/o Dariyab Singh
Age 27 Years
2. Dhirap Bai w/o Ramlal Sondiya
Age 37 years
3. Sajan Singh s/o Bhagwan Singh Sondiya
Age 30 years
4. Prem Singh s/o Dariyab Singh
Age 30 years
5. Tufan Singh s/o Dariyab Singh
Age 23 years
6. Maan Singh s/o Dariyab Singh
Age 24 years
R/o Village Vinayga
Police Station Agar, Distt. Shajapur
Vs.
State of Madhya Pradesh
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Shri Manish Yadav, learned counsel for appellant no.1, 2, 4, 5 and
6.
Shri Asif Warsi, learned counsel for appellant No.3.
Shri A.S. Sisodiya, learned Govt. Advocate for the respondent/State.
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Reserved on: 06.01.2022
JUDGMENT
(Delivered on 26.03.2022) Satyendra Kumar Singh, J., Appellants have preferred this appeal under Section 374(2) of 2 Cr.Appeal No.1214 of 2010 the Code of Criminal Procedure, 1973(2 of 1974) [in short Cr.P.C.] being aggrieved by the judgment dated 27.09.2010 passed by the Court of Additional Sessions Judge, Agar in S.T. No.24/09, whereby the appellant no.3 has been convicted under Section 302 and 201 of Indian Penal Code, 1860 (hereinafter called IPC) and sentenced him to undergo life imprisonment with fine of Rs.1000/- and RI for 7 years with fine of Rs.500/-, while appellant Nos.1, 2, 4, 5 and 6 have been convicted under Sections 120-B r/w 302 and 201 of IPC and sentenced them to undergo life imprisonment with fine of Rs.1000/- and RI for 7 years with fine of Rs.500/- and in default of payment of fine, additional rigorous imprisonment for 6-6 months each.
2. The prosecution case in brief is as follows:
(i) Deceased Ramlal aged about 50 years was the husband of appellant Dhirap Bai, who is sister of appellants Ishwar Singh, Prem Singh, Tufan Singh and Maan Singh. Appellant Sajan Singh was deceased's labourer and was looking after his agricultural work. He while working as deceased's labourer, developed illicit relationship with appellant Dhirap Bai due to which a dispute was occurred between deceased and appellant Ddhirap bai before six months of the incident. Deceased assaulted appellant Dhirap Bai and being annoyed by deceased's behaviour, she left his house situated in 3 Cr.Appeal No.1214 of 2010 village Sarangkhedi and went to her parental house situated at village Vinayga. After about 4 - 5 months, appellant- Dhirap Bai's father - Dariyab Singh, brother appellant Ishawar Singh alongwith Inder Singh and Kalu Singh came to village Sarangkhedi and had called a Panchayat, which took place near Ram Mandir. It was settled therein that Dariyab Singh will send appellant - Dhirapbai with deceased to her matrimonial house and deceased will pay an amount of Rs.20,000/-to Dariyab Singh as medical expenses incurred by him on the treatment of appellant Dhirap Bai.
(ii) After the panchayat, appellants Ishwar Singh and Sajan Singh consumed liquor with deceased at deceased's house and thereafter appellant Ishwar Singh, in connivance with other appellants took the deceased to village Vinayga saying he will send appellant Dhirap Bai with him on the same day. Appellant Sajan Singh also followed them. Both of the above appellants again consumed liquor with the deceased at village Vinayga and on the false pretext that appellant Dhirapbai was at village Gangapur, took the deceased towards Village Gangapur and on the way assaulted on his head and other vital parts of his body by deadly weapon; knife and lathi, due to which he died. Thereafter they with the help of appellants Prem Singh, Tufan Singh and Maan Singh took deceased's dead body on a 4 Cr.Appeal No.1214 of 2010 motor cycle towards Pipalya Ghata and buried the same in a seasonal drainage, near Au river. When deceased did not return back, his brother - complainant Prabhu alongwith deceased's son Shiv Singh went to village Vinayga and several other places in search of the deceased but could not find him. Then after about 1-
1¼ month, on 06.10.2008 deceased's brother complainant Prabhu made a written complaint (Ex.P-2) at police Station Agar stating therein the possibility that appellants Ishwar and Sajjan Singh had murdered the deceased. On the basis of above complaint, a missing person's report (Ex.P-37) was registered on 14.10.2008.
(iii) On the next day i.e. on 15.10.2008 at about 09:00 AM, during inquiry of the missing person's report, Inspector P.L.Raj interrogated appellant Ishwar and recorded his first memorandum statement (Ex.P-3) at police station Agar, wherein he disclosed the fact that deceased's dead body was buried in a seasonal drainage near Au river. On the same day, at about 11:45 AM, he verified the aforesaid place as per verification memo (Ex.P-4). Thereafter, at about 12:45 PM, he on the instance of appellant Ishwar Singh got the place dug up and unearthed skeleton alongwith pieces of clothes as per memo (Ex.P-1). Complainant on the basis of aforesaid pieces of clothes, identified the skeleton as that of deceased, as per 5 Cr.Appeal No.1214 of 2010 identification memo (Ex.P-5). After conclusion of the inquiry of missing person's report, Inspector P.L. Raj lodged dehati nalsi (Ex.P-27), dehati Marg intimation report (Ex.P-38), on the basis of which original FIR (Ex.P-28) and merg intimation report (Ex.P-33) were registered at Police Station Agar.
(iv) During investigation, he prepared spot map (Ex.P-39), called the witnesses issuing safina form (Ex.P-6) and prepared nakshapanchayatnama (Ex.P-7) of the skeleton of the deceased. He also seized soil of the place from where skeleton of deceased was recovered alongwith pieces of red bordered clothes and plain soil as per seizure memo (Ex.P-16). On the same day, he arrested appellant Ishwar Singh as per arrest memo (Ex.P-8), recorded his second memorandum statements (Ex.P-17) and on his instance, at about 16:15 PM seized his blood stained t-shirt, lathi (wooden stick), geti and fawda as per seizure memo (Ex.P-18). On the same day, he again recorded his third memorandum statement (Ex.P-19) and on his instance seized the residual of burnt clothes and shoes of deceased from Harisingh's field situated in village Vinayga as per seizure memo (Ex.P-20). He prepared the spot maps Ex.P-24 and 41 of the places of occurrence i.e. the place where deceased was assaulted and the place from where residual of burnt clothes and 6 Cr.Appeal No.1214 of 2010 shoes of the deceased were seized.
(v) On 16.10.2008, he arrested appellant Dhirap Bai as per arrest memo (Ex.P-42), recorded her memorandum statement (Ex.P-22) and from her possession seized the documents with regard to her treatment as per seizure memo (Ex.P-43). He recorded fourth memorandum statement (Ex.P-21) of the appellant Ishwar, wherein he disclosed the fact with regard to the vehicle involved in the crime. He then arrested appellant Sajan Singh as per arrest memo (Ex.P-9), recorded his memorandum statement (Ex.P-10) and on his instance, seized blood stained knife from his possession as per seizure memo (Ex.P-11) and also a Rajdoot motor cycle from the house of Chandar Singh as per seizure memo (Ex.P-12). He then arrested appellant Maan Singh, Prem Singh and Toofan Singh as per arrest memo Ex.P-43, 44 and 45, respectively. He vide memo (Ex.P-
46) sent the seized skeleton for forensic examination to Controller Medico Legal Sansthan, Gandhi Medical College, Bhopal while vide memo (Ex.P-47) sent the seized pieces of clothes, wooden stick, knife, geti, fawda, residual of burnt clothes shoes alongwith appellant Ishwar Singh's t-shirt for chemical examination to FSL Sagar. Vide memo (Ex.P-48) deceased's bones alongwith blood samples of deceased's brother Prabhu Singh and mother Sardar Bai 7 Cr.Appeal No.1214 of 2010 and vide memo Ex.P-49 blood samples of deceased's son Shiv Singh and his wife appellant Dhirap Bai alongwith deceased's bones were sent to FSL Sagar for DNA test. Obtained FSL report (Ex.P-50) and DNA test report (Ex.P-51) and after completion of investigation, filed the charge sheet before the Court of Judicial Magistrate First Class, Agar Dist. Shajapur, who committed the same to the Court of Sessions Judge, Shajapur. The Sessions Judge made over the case for trial to the Court of Additional Sessions Judge, Agar, Dist. Shajapur.
3. Learned trial Court considering the material prima-facie available on record framed charges u/S 302 and 201 of IPC against appellant No.3 and u/S 120-B r/w 302 and 201 of IPC against the appellant No.1, 2, 4, 5 and 6 who abjured guilt and prayed for trial. In their statements recorded under Section 313 of Cr.P.C., they pleaded their false implications. They further pleaded that after panchayat, deceased - Ramlal alongwith his son Shyam Singh came to village Vinayga, but on the same day he went from there leaving his son-Shyam Singh saying that he will return back within 2-4 days. Appellants were not aware about the place from where deceased skeleton was found. Police falsely implicated them after recovering skeleton of deceased.
8Cr.Appeal No.1214 of 2010
4. Learned trial Court after appreciating the oral as well as documentary evidence available on record convicted appellant No.3 under Section 302 and 201 of IPC, while appellant Nos.1, 2, 4, 5 and 6 have been convicted under Sections 120-B r/w 302 and 201 of IPC and sentenced them as stated in para 1 of the judgment. Being aggrieved by the said judgment of conviction and order of sentence, appellants have preferred this appeal for setting aside the impugned judgment and discharging them from the aforesaid charges framed against them.
5. Learned counsel for the appellant submits that the learned trial Court has committed legal error while appreciating the evidence available on record. Statements of prosecution witnesses are not consistent on the point that deceased Ramlal was last seen together with appellants Ishwar Singh and Sajan Singh. In this regard, statement of Indersingh (PW-13) recorded during trial is entirely different from his earlier statement (Ex.D-4A) recorded under Section 161 Cr.P.C.. Learned trial Court has erred seriously in keeping reliance on improved testimony of Inder Singh. There is considerable lapse of time between the period when deceased was said to be last seen together with the appellants and recovery of skeleton of deceased. Recovery of deceased's skeleton on the 9 Cr.Appeal No.1214 of 2010 instance of appellant Ishwar Singh is also doubtful as Ramlal (PW-
6), Shiv Singh (PW-9) and Pur Singh (PW-10) have admitted in their cross-examination that deceased's skeleton was found one day before its seizure and police had deputed a choukidar there to safeguard the place from where the skeleton was seized. There is nothing else on record which indicates involvement of the appellants in the crime. Therefore, finding with regard to involvement of the appellants in the crime is not sustainable and impugned judgment of conviction and order of sentence deserves to be set aside and appellants may be acquitted from the charges framed against them.
6. Per contra, learned counsel for the respondent/State while supporting the impugned judgment of conviction and order of sentence submits that judgment so passed by the trial Court is based on proper appreciation of evidence available on record. Prosecution has proved the fact that appellant Sajan Singh was having illicit relationship with the deceased's wife appellant Dhirapbai due to which a quarrel was occurred between deceased and appellant Dhirap Bai and he assaulted her. Appellants were having strong motive to commit this crime. Appellants Ishwar Singh and Sajan Singh were last seen together with the deceased and skeleton of 10 Cr.Appeal No.1214 of 2010 deceased was recovered on the instance of appellant Ishwar Singh. Prosecution has proved its case beyond reasonable doubt. Therefore, confirming the judgment of conviction and order of sentence, the appeal filed by the appellants deserves to be dismissed.
7. We have heard the parties at length and perused the record.
8. Present case is based on circumstantial evidence. Deceased's brother Prabhu (PW-1) and son Shiv Singh (PW-9) stated that appellant Sajan Singh was deceased's labourer and look after his agricultural work. They stated that appellant Sajan Singh developed relationship with deceased's wife appellant Dhirapbai due to which a quarrel took place between deceased and Dhirapbai and being annoyed by his behaviour, Dhirapbai left his house and went to her parental house. Although appellant Dhirapbai in her statement recorded under Section 313 of Cr.P.C., denied any relationship with appellant Sajan Singh but she admitted that deceased was having doubt on her character. Appellant Sajan Singh as well as other appellants have also stated so, therefore, this fact is proved that before incident deceased doubted that his wife appellant Dhirapbai was having relationship with appellant Sajan Singh and due to which a quarrel took place between him and his wife and being annoyed by the behaviour of the deceased she left his house and 11 Cr.Appeal No.1214 of 2010 went to her parental house situated at Village Vinayaga.
9. Prabhu (PW-2), Narayan Singh (PW-3), Maan Singh (PW-4), Ramlal (PW-6), Prabhu Singh (PW-8), Shiv Singh (PW-9) and Poor Singh (PW-10) deposed that about 2-3 months before the incident, appellant Dhirapbai's father Dariyab Singh, brother-appellant Ishwar Singh alongwith Inder Singh and Kalu Singh came to their village Sarangkhedi and called the panchayat to resolve the dispute going on between deceased and his wife Dhirap Bai. Appellant InderSingh (PW-13) who is resident of village Vinayaga has also stated so. All the above witnesses deposed that in the aforesaid panchayat, it was resolved that Dariyab Singh will sent his daughter- Dhirapbai with the deceased and deceased will pay an amount of Rs.20,000/- as medical expenses incurred by him on the treatment of appellant Dhirapbai. Appellants have not challenged the aforesaid fact, therefore, this fact is also proved that a panchayat was held in village Sarangkhedi to resolve the dispute going on between deceased and his wife- Dhirapbai. Wherein appellant Dhirapbai's brother-appellant Ishwar Singh was also present alongwith his father Dariyab singh and others.
10. Deceased's brother Prabhu (PW-2), son Shiv Singh (PW-9), Narayan Singh (PW-3) and Pursingh (PW-10) have deposed that 12 Cr.Appeal No.1214 of 2010 after the panchayat, appellant's Ishwar Singh and Sajan Singh consumed liquor with the deceased and thereafter took the deceased to village Vinayaga but Maan Singh (PW-11), Prabhu Singh s/o Pur Singh (PW-8) and Inder Singh (PW-11) deposed that only appellant Ishwar Singh consumed liquor with the deceased, and he took the deceased to village Vinayaga. They have not stated about the presence of appellant Sajan Singh at that time. Prabhu (PW-2) and Shiv Singh (PW-9) have admitted in their cross-examination that they themselves have not seen the deceased going with appellant Ishwar Singh and Sajan Singh and statements of other witnesses are inconsistent about the presence of appellant Sajan Singh, but there is no inconsistency in their statements on the point that after panchayat, appellant Ishwar Singh and deceased were present at deceased's house and thereafter both of them went to village Vinayaga. This fact finds support from the statements of appellants, recorded under Section 313 Cr.P.C. wherein they themselves stated that after panchyat deceased alongwith his son Shyam singh came to village Vinayaga and thereafter deceased went somewhere saying that he will return within 1-2 days. Therefore, this fact is also found proved that after panchayat, deceased went to village Vinayaga and as deposed by Inder Singh (PW-11), he was seen at appellant Ishwar 13 Cr.Appeal No.1214 of 2010 Singh's house.
11. Deceased's brother Prabhu Singh (PW-2) and son Shiv Singh (PW-9) deposed that when deceased did not return back home, they went to village Vinayaga in search of him, where appellants told them that deceased had gone for labour work. They further deposed that they also searched the deceased at various other places but did not find him. Then on 06.10.2008, complainant Prabhu (PW-2) made a written complaint (Ex.P-2) to police station Agar. SHO, Agar, Inspector P.L. Raj (PW-23) deposed that he inquired the aforesaid complainant and thereafter, on 14.10.2008, registered a missing person's report (Ex.P-37) with regard to missing of the deceased- Ramlal. He further deposed that on 15.10.2008 at about 09:00 AM, during inquiry of the aforesaid missing person's report, appellant Ishwar Singh in his memorandum statement (Ex.P-3), recorded before Prabhu and Narayn Singh disclosed that deceased's dead body was buried in a seasonal drainage near Au river. He further deposed that on the same day at about 11:45 AM, he alongwith appellant Ishwar Singh and witnesses Prabhu and Madan went to aforesaid place and verified the spot as per Spot Panchnama (Ex.P-4).
12. Inspector, P.L.Raj (PW-23) further deposed that on the same 14 Cr.Appeal No.1214 of 2010 day i.e. on 15.10.2008 at about 12:45 PM, he on the instance of appellant Ishwar, got that place dug up by the employees of Municipal Corporation namely; Surendra, Rakesh and Shankar in front of Prabhu and Madan and found human skeleton alongwith pieces of clothes as per Panchnama (Ex.P-1). He further deposed that on the basis of above pieces of clothes , complainant- Prabhu identified the skeleton as that of his brother-deceased's skeleton as per identification memo (Ex.P-5). Shankar (PW-1) and Prabhu (PW-
2) have supported his aforesaid statements and appellants have not seriously challenged the recovery of human skeleton and pieces of clothes from the place as stated above and the fact that complainant Prabhu identified the skeleton as that of his brother-deceased Ramlal's skeleton. Therefore, this fact is also found proved that after about one and half month of the missing of the deceased, his skeleton was recovered from a seasonal drainage near Au river on 15.10.2008 as per panchnama (Ex.P-1).
13. Inspector P.L. Raj (PW-23) deposed that after conclusion of inquiry of missing person's report, he on the same day, i.e. on 15.10.2008 registered dehati nalsi (Ex.P-27) and dehati merg intimation report (Ex.P-38) about the death of the deceased on the basis of which original FIR (Ex.P-28) and merg intimation report 15 Cr.Appeal No.1214 of 2010 (Ex.P-33) were registered at police station Agar. He further deposed that on the same day, he after issuing safina form (EX.P-6) prepared nakshapanchayatnama (Ex.P-7) of deceased's unearthed skull, mandible, both humerus, radius, ulna, scapula, vertebra and also seized piece of femur bone and phalanges which were found near the above place. He further deposed that on the same day, he seized the pieces of clothes found alongwith the skeleton, soil of the place from where skeleton was recovered and also plain soil as per seizure memo Ex.P-16. He further deposed that vide letter Ex.P-46, he sent deceased's skeleton to Medico Legal Sansthan, Gandhi Medical College, Bhopal for examination while vide letter Ex.P-48 and P-49 sent the blood samples of deceased's mother Sardar Bai, brother- Prabhu Singh, son- Shiv singh and wife Dhirap Bai alongwith deceased's bone to FSL Sagar for DNA examination.
14. As it has been opined in the FSL report Ex.P-51 that Prabhu and Sardarbai are biological relatives of the deceased, while Shiv Singh is biological son of appellant DhirapBai and deceased, hence, there remains no doubt that recovered skeleton was of complainant's brother- deceased- Ramlal.
15. Dr. D.S. Badkur (PW-18) deposed that he received a sealed packet from Primary Health Center, Agar wherein following human 16 Cr.Appeal No.1214 of 2010 bones were found:- (i)skull (ii) mandible (iii) both scapula (iv) both clavicle (v)both humerus (vi)both ulna (vii) both radius (viii) both femur (ix) 22 ribs (x) 9 vertebra (xi) 22 small phalanges. He further deposed that aforesaid bones are devoid of skin and soft tissues. Dry mud and ligaments are attached to the bones. Gnawing and broken effect present on some of the bones. injuries present on skull. He further deposed that he examined the same and prepared his report (Ex.P-32) which is as follows:-
Skull - Typical male in character. Superciliary arches and muscular attachment are prominent. All teeth erupted. The socket of first and second molar on right side and fist molar on left side are absorbed. Moderate to marked attrition effect present on available teeth. Sutures are partially closed from outer table and closed from inner table.
Injuries :- the hard palate of left side is longitudinally fractured in between lateral inciser (I2) and canine going longitudinally upto the posterior border. Base of the skull involving base-sphenoid from right to left and continued with the temporal bone including meatus and then running upwards and posteriorly across the parietal eminance and gradually tapering medially upto first lateral to the sagittal suture. The posterior fragment is slightly depressed. The 17 Cr.Appeal No.1214 of 2010 fracture is wide towards the lower lateral part and gradually tapering towards the upper medial part. The total fracture length measures about 23.5cm.
Opinion:- (i)Bones are of human in origin. (ii)Bones belong to same individual. (iii) Sex is male. (iv) Age about 50-55 years. (v) Cause of death:- Injuries present on the skull are caused by hard, blunt and heavy object and if inflicted during life are sufficient to cause death but duration of death could not be ascertained.
16. Appellants have not challenged the aforesaid finding seriously, therefore, this fact is also found proved that deceased was assaulted heavily before his death and his death was homicidal in nature. So far as the issue with regard to involvement of appellants in the aforesaid crime is concerned, prosecution case is based on last seen together evidence and recovery of deceased's skeleton. It has already been found that on the date of panchayat, when panchayat was over, deceased Ramlal went to village Vinayaga at appellant Ishwar Singh's house, as appellants themselves have admitted in their statements recorded under Section 313 of Cr.P.C.. Prosecution case is that on the same day at about 10:00 PM, deceased was last seen together with appellants Ishawar Singh and Sajan Singh going somewhere from appellant Ishwar Singh's house. In this regard, 18 Cr.Appeal No.1214 of 2010 prosecution has examined Inder Singh (PW-13) and Suraj Singh (PW-21). Inder Singh (PW-13) has supported the prosecution case but his statements recorded during trial are not consistent with his earlier statements (Ex.D-4A) recorded under Section 161 of Cr.P.C.
17. Inder Singh (PW-13) deposed entirely different story as that of his earlier statements (Ex.D-4A) and deposed that after the panchayat, appellant Ishwar Singh took the deceased to village Vinayaga at his house and started consuming liquor. He further deposed that during the period of consuming liquor when both of them started quarreling, he intervened and last time saw the deceased with appellant Ishwar Singh in intoxicated condition at appellant Ishwar Singh's house. He no where deposed the presence of appellant Sajan Singh there at that time. He also no where deposed that on the same day at about 10:00 PM, he saw the deceased alongwith appellants Ishwar Singh and Sajan Singh going together as mentioned in his earlier statement (Ex.D-4A) recorded under Section 161 of Cr.P.C.. Othr last seen witness Suraj Singh (PW-21) has totally resiled from his earlier statement Ex.P-35 recorded under Section 161 of Cr.P.C. and has turned hostile. Therefore, without any corroborative evidence only on the basis of aforesaid inconsistent statement of Inder Singh, it cannot be inferred 19 Cr.Appeal No.1214 of 2010 that he saw the deceased together with appellants Ishwar Singh and Sajan Singh before the incident.
18. So far as the recovery of deceased's skeleton is concerned, Inspector P.L. Raj (PW-23) although deposed that during the inquiry of deceased's missing report, when he brought appellant Ishwar on 15.10.2008 at Police Station Agar and interrogated him in front of witnesses Prabhu and Narayan, he disclosed the fact that deceased's skeleton is buried in a seasonal drainage near Au river as per memorandum statement (Ex.P-3) but Prabhu (PW-2) and Naranyan (PW-3) have not stated so. Prabhu(PW-2) in para 25 of his cross- examination deposed that police brought appellant - Ishwar in Village Sarangkhedi, a day before seizure of deceased's skeleton. in para 24 of his cross-examination deposed that appellant Ishwar had disclosed about the deceased's skeleton not at Police Station Agar but in Village Sarangkehdi and he signed on the aforesaid memorandum statement (Ex.P-3) in Village Sarangkhedi. Narayan (PW-3) in para 18 of his cross-examination deposed entirely a different story and stated that on the date of seizure of deceased's skeleton, police brought appellant Ishwar at Piplyaghat and there he disclosed about deceased's skeleton.
19. In this regard, statements of Ramlal(PW-6), deceased's son 20 Cr.Appeal No.1214 of 2010 Shiv Singh (PW-9) and Pur Singh (PW-10) are also relevant wherein they specifically admitted in their cross-examination that police was having information about the place from where deceased's skeleton was seized a day before the seizure and police deputed a Chowkidar to safeguard the place of seizure of skeleton. In these circumstances, this fact cannot be said to be proved beyond reasonable doubt that deceased's skeleton was recovered on 15.10.2008 on the instance of appellant Ishwar Singh.
20. As held by Apex Court in State of Goa Vs. Sanjay Thaleran (2007 3 SCC 755 that the circumstances of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the accused and deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased would completely ruled out. In the present case, this fact is not disputed that deceased's skeleton was recovered after about 1 ½ month from the date he went missing, therefore, in this case it is not safe to rely on circumstances of last seen together evidence. Moreso, if period between the deceased went missing and recovery of his skeleton is ignored, even then, prosecution has failed to prove the fact that last 21 Cr.Appeal No.1214 of 2010 seen witnesses Indar Singh (PW-13) and Suraj Singh (PW-21) saw the deceased alive with appellant Ishwar Singh and Sajan Singh going together towards the place of incident. Recovery of deceased's skeleton on the instance of appellant Ishwar Singh has also been found doubtful. There is nothing else on the record which indicates that appellant Sajan Singh made a conspiracy with other appellants and in furtherance of which he alongwith appellant Ishwar committed murder of the deceased, and thereafter, buried his dead body with the help of other appellants.
21. Therefore in the light of the aforesaid discussion, we are of the considered opinion that trial Court has committed an error in finding the appellants guilty and have no hesitation to hold that prosecution has failed to prove the guilt against appellants beyond reasonable doubt. Hence, conviction of the appellants cannot be upheld and the appeal filed by the appellants deserves to be allowed. Accordingly, we pass the following order:
(i) Criminal Appeal No.1214/2010 filed by the appellants
- Ishwar Singh, Dhirap Bai, Sajan Singh, Prem Singh, Tufan Singh and Maan Singh is allowed.
(ii) The judgment of conviction and order of sentence dated 27.09.2010 passed in S.T. No.24/09 by which 22 Cr.Appeal No.1214 of 2010 appellant no.3 has been convicted under Section 302 and 201 of IPC, while appellant Nos.1, 2, 4, 5 and 6 have been convicted under Sections 120-B r/w 302 and 201 of IPC and sentenced them as stated in para 1 of the judgment is hereby set aside.
(iii) Appellants be set at liberty, if not required in any other case.
(iv) Fine amount(if any) deposited by the appellants be refunded to them.
The Registry is directed to send back the trial Court record forthwith alongwith the copy of this judgment.
Certified copy as per rules.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
vibha/-
VIBHA PACHORI
2022.03.28
16:48:53 +05'30'