Madhya Pradesh High Court
The State Of Madhya Pradesh vs Vikas Mishra @ Golu on 6 November, 2015
M.Cr.C.No.15858/2015
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M.Cr.C.No.15858/2015
6.11.2015
As Per : N.K.Gupta, J.
Shri Bramhadutt Singh, Govt. Advocate for the State/applicant.
Heard on leave application.
The State has preferred the present leave application for grant of appeal to appeal against the judgment dated 27.6.2015 passed by the Sessions Judge, Rewa in S.T. No.179/2014, whereby the respondents have been acquitted from the charges of offence under Sections 302 or 302/34 of IPC.
The prosecution's case, in short, is that, Nagendra Patel (P.W.2) was prosecuting a business at village Mehsaon (Police Station Gudh, District Rewa). On 14.3.2014 in the noon, the respondents and one Harishankar Tiwari came to his shop on motorcycle. At that time, Parwati Patel (P.W.3), mother of Nagendra Patel was sitting in the shop. The respondents asked for Gutka and Cigarette on credit then, Parwati Patel demanded for previous amount due towards the respondents. The respondents and Harishankar had started abusing Parwati Patel. In the meantime, Nagendra Patel came out of his house and told the respondents not to shout but, they also abused him. Ramadhar (P.W.12) and Dheerendra Mishra (P.W.11) came to the spot and they resolved M.Cr.C.No.15858/2015
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the matter and thereafter, the respondents left the spot. At about 8.30 p.m. in the night, the respondents and Harishankar came on the motorcycle having a bottle containing petrol. They poured petrol on the shop and tried to set fire upon the shop. In the meantime, Sonu Tiwari @ Nagendra Sharma (P.W.14) came to the spot and he immediately informed Nagendra Patel. Nagendra Patel came out of his house then, the respondents and Harishankar started running towards their motorcycle. Nagendra Patel (P.W.2) and Dheerendra Mishra (P.W.11) have held the respondents. On hearing the noise, the deceased Upendra Prasad Chaturvedi also came to the spot. The respondent Vivek Tiwari raised a knife from his pocket and gave a powerful blow on the left side of the chest of Upendra Prasad Chaturvedi and thereafter, the respondents ran away. Upendra Prasad Chaturvedi had died at the spot. An FIR was lodged and dead body of the deceased Upendra Prasad Chaturvedi was sent for the post-mortem and a charge-sheet was filed.
After considering the submissions made by the learned counsel for the State and considering the evidence adduced before the trial Court, it appears that Nagendra Patel (P.W.2), Parwati Patel (P.W.3), Abhishek Chaturvedi (P.W.4), Gyanwati (P.W.5), Seema Chaturvedi (P.W.6), Nisha Chaturvedi (P.W.7), M.Cr.C.No.15858/2015
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Ramadhar (P.W.12) and Nagendra Sharma (P.W.14) were examined as eye witnesses and all of them have turned hostile.
Learned Govt. Advocate for the State has submitted that Nisha Chaturvedi has accepted that villagers were talking that the respondent Vivek killed the deceased Upendra. However, that version of Nisha Chaturvedi falls within the purview of hearsay evidence. No such villager was examined, who saw the incident that the respondent Vivek killed the deceased Upendra. Hence, no ocular evidence remained in the case.
So far as the circumstantial evidence is concerned, it is alleged that one knife was recovered from the respondent Vivek and according to the Forensic Science Laboratory's report, Ex.P/24, human blood was found on that knife. However, the witnesses of seizure, Ex.P/6 namely Nagendra Patel (P.W.2) and Dheerendra Mishra (P.W.11) have turned hostile. Under such circumstances, where the investigation officer ASI Shri Ramlal Yadav (P.W.8) did not mention on the seizure memo, Ex.P/6 that seized knife was sealed at the spot, whereas no impression of seal was affixed on the document, Ex.P/6 then, it cannot be said that the seized knife was sent to the Forensic Science M.Cr.C.No.15858/2015
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Laboratory in the same condition and therefore, report of FSL, Ex.P/24 loses its evidentiary value because article after seizure was not proved to be sealed and sent it to the Forensic Science Laboratory in a sealed condition. Chain of circumstantial evidence is broken. There was no enmity of the respondents to the deceased Upendra. According to the prosecution's story, a quarrel was initiated between Nagendra Patel and the respondents and while the witnesses were catching the respondents, the deceased Upendra participated in holding the respondents and therefore, it cannot be said that the respondents had any motive to kill him.
There is no ocular evidence in the case, whereas chain of circumstantial evidence is broken. If leave is granted then, appeal filed by the State shall not succeed. Hence, it is not a case in which leave may be granted. Consequently, leave application filed by the State is hereby dismissed.
Copy of the order be sent to the Courts below alongwith its record for information.
(S.K.Gangele) (N.K.Gupta)
Judge Judge
Pushpendra