Madhya Pradesh High Court
Meku Prasad @ Ram Niwas vs The State Of Madhya Pradesh on 21 December, 2017
Author: H.P. Singh
Bench: H.P. Singh
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No. 2039 of 2007
Parties Name Meku Prasad alias Ram Niwas,
aged about 46 years, S/o
Amoli Prasad Panika, R/o
Village Langhatola, Police
Station Rajendragram,
presently R/o Near
Sukhnalala, Chachai, Police
Station Chachai, District
Anuppur (M.P.)
Vs.
State of Madhya Pradesh,
through Police Station
Rajendragram, District Anuppur
(M.P.)
Bench Constituted Hon'ble Shri Justice Anurag
Shrivastava
&
Hon'ble Shri Justice H.P. Singh
Judgment delivered by Hon'ble Shri Justice Anurag
Shrivastava
Whether approved for Yes/No
reporting
Name of counsels for For appellant:
parties Shri D.D. Bhargava, Advocate .
For respondent/State:
Shri Vaibhav Tiwari, Government
Advocate.
Law laid down
Significant paragraph
numbers
-2-
Cr.A.No.2039/2007 Meku Prasad alias
Ram Niwas Vs.
State of M.P.
JUDGMENT
( 21.12. 2017) The present appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant/accused against the judgment and conviction dated 01.09.2007, passed by Sessions Judge Shahdol, (M.P.) in S.T. No.204/2006, whereby the appellant/accused has been convicted for commission of offences punishable under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life and a fine of Rs.1,000/- and Section 201 of IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs.1,000/- with default stipulations.
2. The case of prosecution in brief is that the appellant/accused Maku Prasad is resident of village Langha Tola but at the time of incident he was living in village Chachai with his wife Smt. Ramkali Bai. In the village Langha Tola, the parents of appellant were living. Appellant used to work as mason and his wife works as maidservant. Deceased Ramesh Tiwari was a grain merchant having a grocery shop at village Chachai. Ramkali Bai used to purchase the grocery items from the shop of deceased and she had developed illicit relations with him. Appellant was also knowing their illicit relationship and was inclined to eliminate the deceased. It is alleged that in pursuance of a plan the appellant got prepared a letter on the name of Ramkali Bai addressed to deceased and called the deceased to meet Ramkali Bai at village Langha Tola. In this letter it was further mentioned that- "after arriving to village Langha Tola, the deceased should stay in a house situated on Karpa -3- Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. road and wait for Ramkali Bai. She would reach there at around 9-10 p.m. in the night. Deceased would also get 2-3 quintal of wheat". Receiving this letter Article-A, on 20.05.2006 in the evening, deceased Ramesh Tiwari arrived at village Langha Tola by bus and passed his time by making inquiry about the rates of wheat in the village. The appellant met him there, took him to his nephew's house and made arrangements for night stay of deceased in the house situated at Karpa road. Thereafter, in the night the deceased went to the house situated on the Karpa road and stayed there. In the late hours of night when deceased was sleeping, appellant went there and inflicted multiple blows of hammer on the head, face and shoulder of the deceased and killed him. He burnt the dead body and thereafter, he locked the door of house from outside and ran away.
3. As per prosecution story, when the deceased did not return home, a search was mounted for him and on 27.05.2006, his brother Kamla Prasad Tiwari lodged a missing report at Police Station Rajendra Gram. Police recorded a Sanha Ex.P-30 of missing person. Next day, Kamla Prasad entered in the house of deceased by breaking open the lock of the door and from the shirt of the deceased a letter Article-A was found. This letter was produced before the police and on the basis of this letter, police went to the house situated on Karpa road at village Langha Tola. The police entered in the house by breaking open the lock of door and found a partially burnt dead body of deceased. Sub-Inspector J.P. Patel (PW-18) prepared Dehati Marg intimation Ex.P-31 and -4- Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. conducted the inquest. The Panchnama of dead body was prepared. The body was got identified by Kamla Prasad. The spot map was prepared and dead body was sent for postmortem. Later-on, on 29.05.2006, a FIR Ex.P-33 was recorded on the basis of inquest and an offence under Section 302 of IPC was got registered. During investigation, a hammer, broken lock and clothes of the appellant were recovered and seized at the instance of appellant. The letter Art.A was seized. The statements of witnesses were recorded and after completion of investigation, a charge-sheet has been filed before the Court.
4. The trial Court has framed the charge of offence punishable under Section 302 and 201 of IPC on the appellant. He abjured guilt and pleaded innocence.
5. The prosecution has examined eighteen witnesses whereas the appellant has adduced no evidence in his defence.
6. The trial Court on appreciation of evidence by passing impugned judgment held the appellant guilty for commission of offence punishable under Section 302 and 201 of IPC and sentenced to undergo imprisonment as mentioned hereinabove.
7. It is submitted by learned counsel for the appellant that the case of prosecution is based upon circumstantial evidence. There is no evidence to show the deceased was having illicit relationships with the wife of appellant.
-5-Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. It is not proved that letter Article-A was written by the appellant or he had sent the letter to deceased. There is no evidence regarding last seen. The dead body of deceased was recovered from the house not in possession of the appellant. No blood stains were found on the hammer recovered by the police. Thus, no incriminating circumstances have been established by the prosecution against the appellant. The trial Court on erroneous appreciation of evidence had convicted the appellant for commission of alleged offence. The conviction and sentence awarded by the trial Court is not sustainable.
8. Heard arguments, perused the record.
9. It is not disputed that the dead body of deceased Ramesh Kumar Tiwari was found inside a house situated on Krapa road at village Langha Tola. It appears that the brother of deceased namely Kamla Prasad Tiwari (PW-
16) lodged a missing report Ex.P-30 on 27.05.2006 at Police Station Rajendra Gram. Next day, on 28.05.2006 the dead body of deceased was recovered from the house of Ashok Bahelia situated at the Krapa road. Police prepared spot map Ex.P-37, Panchnama of dead body Ex.P-20, the dead body was identified by Kamla Prasad (PW-16) and threafter sent for postmortem.
10. Dr. T.R. Chourasia (PW-6) deposed that on 29.05.2006 at Community Heath Center Rajendra Gram, he had performed the autopsy of deceased Ramesh Kumar Tiwari and found the body was partially burnt.
-6-Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. There was a wound 6 x 4 cm at right side of forehead, a wound 2 x 2 cm on right side of face, a wound 6 x 2 cm near the injury no.2 and a wound of sieze 10 x 4 cm at left shoulder. All the wounds were bone deep and the bones of the head were found fractured. Due to burn, it cannot be said whether the wounds were incised or lacerated. The cause of death was coma, result of injuries caused to deceased. The time of death is within 7 to 10 days prior to postmortem. The statement of doctor is duly corroborated by postmortem report Ex.P-
15. Therefore, relying upon above evidence of doctor and P.M. Report, it is rightly proved by the trial Court that the death of deceased was homicidal.
11. Now the question arises whether the appellant has caused the injuries to deceased and thereby committed his murder? The case of prosecution rests upon circumstantial evidence. There is no witness to the incident. It is settled law that the circumstance from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with this innocence.
12. The first circumstance relied by the trial Court is in regard to illicit relationship of deceased with the wife of appellant which has been described as motive to commit -7- Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. the alleged offence. In this regard, the prosecution has examined the wife of the appellant namely Ramkali Bai (PW-2). She deposed that she did not know the deceased. She had never met him and she was having no relations with him. She had also denied that she had ever purchased any goods from the shop of the deceased. This witness has been declared hostile by the prosecution. There is no evidence on record to show that Ramkali Bai and deceased were well acquainted and they had illicit relationships. Daulal Baiga (PW-3) was the employee of deceased who had been working in his shop for five-six years. He did not say that Ramkali Bai was purchasing the goods from the shop and she used to visit the shop and meet the deceased. Thus in absence of evidence, it is not proved that the deceased was having illicit relations with the wife of appellant.
13. Another circumstances relied upon by the trial Court is that the appellant has called the deceased by writing a letter article A-1. On perusal of letter it appears that this letter is written on the name of Ramkali Bai addressed to deceased In this letter it was written on behalf of Ram Kali Bai to the deceased that- "I want to meet you at village Langha Tola. Do come to Langha Tola and stay in a house situated on Karpa road and wait for me. I will meet you there in the night at around 9 - 10 p.m., I would also give you the grains 2 - 3 quintal of wheat."
14. There is no evidence as to who has written this letter because Ramkali Bai is an illiterate lady. She had -8- Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. denied in her evidence to write this letter. There is no evidence to show that this letter had been sent by the appellant to deceased. One of the witness Daulal (PW-3) who was working as Helper in the shop of deceased, deposed that some days prior to incident he visited the shop of deceased where he had seen the letter article A- 1 kept on the counter of the shop. Deceased told him that he would visit Langha Tola for collecting the wheat. This letter was written by Ramkali Bai who had invited the deceased to come to Langha Tola for collecting the wheat. It is further deposed by Daulal that after three four days when deceased did not return home he had informed the relatives and brother of deceased about above fact and also went in search of deceased to village Langha Tola.
15. Another witness Indra Pal Dhurve (PW-13) deposed that prior to the incident deceased Ramesh came to his house and asked him to accompany him in visiting village Langha Tola. Deceased told him that Ramkali Bai had called him to village Langha Tola for collecting the wheat. It is further deposed by the witness that he had informed this fact to the relatives of the deceased when they were making search of deceased.
16. Kamlakar Prasad Tiwari (PW-16) is brother of the deceased. He deposed that when he was making search of the deceased Daulal told him about the letter written by Ramkali Bai who had called the deceased to come to village Langha Tola, stay in her house and collect the wheat. Than Kamlakar Prasad went to village Langha -9- Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. Tola where Mohan Jaiswal told him that one man had visited Langha Tola on 20.05.2006 for purchasing the wheat.
17. This shows that Kamlakar Prasad had already received the information from Daulal, Indra Pal Singh and Mohan Jaiswal that one Ramkali Bai had called the deceased to village Langha Tola for collecting the wheat by writing a letter and on 20.05.2006 the deceased had arrived to village Langha Tola in the evening. But, these facts are not mentioned in the report (Ex.P/30). This report regarding missing of the deceased was lodged by Kamalakar Prasad (PW-16) at Police Station Rajendra Gram on 27.05.2006 at 04:30 p.m. Why Kamalakar Prasad had not informed the police that the deceased was called by Ramkali Bai, the wife of Meku for giving wheat to deceased, no reason had been given by Kamlakar Prasad. This creates doubt on the testimony of Daulal and Indra Pal Singh. If these witnesses would have informed Kamlakar Sing about the letter and visiting of deceased to village on request of Ramkali Bai than certainly these facts would have been mentioned in report Ex. P-30. Indra Pal Singh has admitted in cross- examination that he had not informed the police about the name of husband of Ramkali Bai. He does not know who is Ramkali Bai where she lives and who is her husband. The prosecution has declared Indra Pal Singh hostile also. Thus the testimonies of Daulal and Indra Pal Singh become doubtful.
-10-Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P.
18. The trial Court has relied upon another circumstances as to deceased was last seen with the appellant. In this regard witness Mohan Lal Jaiswal (PW-
9) deposed that he has a Tea Shop at Karpa road Tiraha in the village Langha Tola. On 20.05.2006 the appellant Meku his wife Ramkali Bai and deceased Ramesh arrived by a Bus and went to the house of Vishnu which is situated in front of his shop. After 15 - 20 minutes deceased came to hotel of Mohan Lal and had a tea. He informed Mohan Lal that appellant and his wife has to pay him about Rs.3000/- and they have called him to give wheat in lieu of money. He also wants to purchase wheat from the village. After taking tea the deceased again went to the house of Vishnu Parikar and stayed there with appellant and his wife. At around 08:30 pm in the night Mohan Lal returned home after closing his shop.
19. The statement of Mohan Lal is not corroborated by Vishnu Prasad (PW-10) and Amsiya Bai (PW-8) who is wife of Vishnu Prasad. Although, they have admitted that appellant and his wife had come to their hotel from Chachai but after taking tea they went to their house. The father and brother of appellant are living in the village Langha Tola. These witnesses had denied that the deceased had also come with the appellant and Ram Kali Bai to their hotel and stayed in their house in the night. These witnesses have been declared hostile by the prosecution.
-11-Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P.
20. Kamlakar Prasad (PW-16) deposed that when he visited Langha-Tola in search of his brother, witness Mohan Lal Jaiswal had informed him that on 20.05.2006 the deceased had arrived in his hotel and told him that he had come to purchase wheat, than after having tea he had gone. Kamlakar Prasad did not depose that "at that time Mohan Lal had also informed him that the appellant and his wife had also accompanied the deceased when he came in his hotel and after taking tea deceased went to the hotel or house of Vishnu Prasad and there he stayed with appellant and his wife in the night". From this it can be inferred that Mohan Lal had not narrated about these facts to Kamlakar Prasad. This is very important to note that if Mohan Lal had seen the deceased coming together with the appellant and his wife by a bus and staying in the house of Vishnu Prasad with appellant and if the deceased had informed him that the wife of appellant Ramkali Bai had called him for collecting wheat, than why these facts had not been told to Kamlakar Prasad by Mohan Lal. This is not a natural conduct. Therefore non disclosure of above facts to brother of deceased creates doubt on his evidence and we cannot believe on sole testimony of the witness Mohan Lal. It appears that the daughter of this witness had run away with the son of Vishnu Prasad, who is nephew of the appellant. The appellant had given shelter to his nephew and daughter of Mohan Lal and a case was also registered against appellant in this regard. This shows the enmity between this witness and appellant. On these grounds his sole testimony cannot be believed beyond reasonable doubt. Therefore, it is not proved that -12- Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. on 20.05.2006 the deceased had remained in company of the appellant and he stayed in the night with appellant in the house of Vishnu.
21. In the present case, No one had seen the appellant either going in or coming out from the house where the dead body of deceased was found. No body had seen the deceased or appellant going towards or coming from the said house. No body had seen the appellant breaking open the lock of the door of that house. The dead body of deceased recovered on 28.5.2006. The doctor estimated the time of death some seven to ten days prior to postmortem which was conducted on 29.05.2006, it means the deceased might have been killed between 20 th and 22nd of May. In view of aforesaid, there is no reliable evidence on record to establish that the appellant was seen in company with the deceased on the date of incident 20.05.2006.
22. As far as recovery of hammer and broken lock is concerned, there is no blood stains found on the hammer. The prosecution has not brought the FSL report on record to prove above fact. The Trial Court had wrongly treated the hammer stained with blood. It is also not proved that the same lock was found on the door of the house where the dead body was recovered, which had been purchased by the appellant. There may be several reasons for burning of the clothes of appellant. It cannot be presumed that the clothes were burnt when the dead body of deceased was set on fire. The trial -13- Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. Court had wrongly relied upon these circumstances in holding the guilt of appellant.
23. In view of aforesaid discussion, it appears that the prosecution has failed to prove that the wife of appellant was having illicit relations with the deceased. It is also not proved that the letter Article-A was got prepared by the appellant and delivered to the deceased. It is also not proved beyond reasonable doubt that deceased arrived at village Langha Tola with the appellant and stayed with him in the house of Vishnu. There is no reliable evidence to establish the fact that the deceased was seen with the appellant soon before his death. It may be possible that on the fateful day i.e. 20.05.2006, deceased had come to village Langha Tola for purchase of wheat and on the same day appellant and his wife had also visited village Langha Tola where his parents were living, but there is no reliable evidence to prove that they were stayed together or the appellant had made arrangements of stay of the deceased in the house where his dead body was recovered. The doctor could not fix the time of death.
24. To establish the circumstances of last seen, it is necessary to establish the proximity between time when deceased was last seen together with accused and time of death. It is necessary the time gap between the point of time when the accused and deceased were seen last alive and when the deceased was found dead must be so small that possibility of any person other than the accused being the author of crime becomes impossible.
-14-Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. Hon'ble Apex Court in Case Law Roopsena Khatun Vs. State of West Bengal in para 7 observed that -
"The last circumstance "last seen" if at all can be used against the accused as a circumstance should have been connected with time of death. Here is the case when the deceased was seen following the accused at about 10 a.m. on the earlier day whereas the body was found on the next day at about 2.30 p.m. The prosecution has not fixed the time of the death also. Therefore, there is no proximity between the time when the deceased and the accused were last seen together and the time of the death of the deceased. At least, the prosecution has not been able to establish the same. Therefore, even if that circumstance is viewed as an incriminating evidence, it would be no significance."
25. In Another case law State of Goa Vs. Sanjay Thakran AIR 2007 SC (Supp.) 61 = 2007 (3) SCC 755, Hon'ble Apex Court observed in para 34 as under :-
"34. From the principle laid down by this court, the circumstance 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 point of time when the accused and the deceased were found together alive and when the deceased was found dead so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of deceased and the detection of the crime would be a material consideration for application of the evidence and placing reliance on t as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last -15- Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. seen togethr in the crime coming to light is after a considerable long duration. There can be no fixed straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is a long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such an accused person. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting and approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in the exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."
26. In the present case the house where the dead body was found was not in exclusive possession of the appellant. It was locked for a long time. The deceased was not found in the company of deceased on 20.05.2006. The time of death of deceased is not fixed .There is no proximity of time when appellant was seen in company of deceased and time of death. Any person could have killed the deceased when he was sleeping in vacant house. Thus, the prosecution has utterly failed to establish the circumstances as alleged against the -16- Cr.A.No.2039/2007 Meku Prasad alias Ram Niwas Vs. State of M.P. appellant to bring home the guilt. The trial Court on erroneous appreciation of evidence relying upon above circumstances held the appellant guilty for commission of offence. It is not proved beyond reasonable doubt that the appellant had committed the murder of the deceased.
27. Consequently, the conviction and sentence awarded by the trial Court on the appellant is set aside and appellant is acquitted of the charge of offence punishable under Section 302 and 201 of IPC. He be released from jail forthwith, if not required in any other case.
28. The appeal is allowed.
(Anurag Shrivastava) (H.P. Singh)
Judge Judge
Vin**
Digitally signed
by VINOD
SHARMA
Date: 2017.12.21
01:19:59 -08'00'