Madhya Pradesh High Court
Narendra Singh vs The State Of Madhya Pradesh on 1 February, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Rajendra Kumar Verma
1 Cr.A.No.6208/2020
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 1st OF FEBRUARY, 2022
CRIMINAL APPEAL No. 6208 of 2020
Between:-
NARENDRA SINGH S/O BHARATSINGH RAJPUT,
AGED ABOUT 46 YEARS,
R/O BARGADI, TEHSIL BADNAGAR,
DIST. UJJAIN (MADHYA PRADESH)
.....APPELLANT
(BY SHRI AMAR SINGH RATHORE, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH
THRU. P.S. BADNAGAR, DIST. UJJAIN
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ADITYA GARG, GOVERNMENT ADVOCATE )
(Heard through Video Conferencing)
This appeal coming on for orders this day, JUSTICE
RAJENDRA KUMAR (VERMA) passed the following:
JUDGMENT
Instead of arguing on application for suspension of sentence, learned counsels have agreed to argue the appeal finally.
The appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short 'the Cr.P.C') against the judgment dated 10.11.2020 passed by the learned Additional Sessions Judge, Badnagar, district Ujjain in Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2022.02.07 13:35:52 IST 2 Cr.A.No.6208/2020 S.T.No.528/2017 by which the appellant has been convicted for offence punishable under Section 302 of IPC and sentenced him to undergo life imprisonment with fine of Rs.5,000/- with default stipulation.
2. The case of the prosecution in brief is that on 17.06.2017, complainant Nilesh, his mother Sitadevi, sister Chanda, grand mother Anandibai and servant Poonamchand were working at their field. At about 12 P.M. servants of the neighbour Narendra Singh namely Shobharam, Unkar and Dinesh came there and started picking up the twigs fallen from babool tree planted in the boundary of the complainant and appellant, due to the storm and when the grandmother Anandibai restrained them to pick the same, as half of it belongs to her, then the servant Dinesh informed telephonically to appellant Narendra Singh, who after 10 minutes came there with an axe and started abusing her by filthy language and threatened her and from the back side of the axe gave a blow on the head of Anandibai due to which she fell down and appellant and his servants fled away from the spot. Anandibai was taken to the hospital where she was declared brought dead. On the information given by the complainant Nilesh, FIR Ex.P-1 was registered at Badnagar Police Station.
3. During investigation the police seized the axe from the appellant and filed charge sheet after completion of the investigation. Charges under Section 302 of IPC was framed against the appellant which he denied and pleaded for trial. The prosecution has examined as many as 19 witnesses from PW-1 to PW-19 and got marked 36 documents as Ex.P-1 to Ex.P-36. In defence, no evidence was produced.
Signature Not VerifiedDigitally signed by SAN REENA JOSEPH
Date: 2022.02.07
13:35:52 IST
3 Cr.A.No.6208/2020
4. After evaluating the evidence that came on record, the learned Additional Sessions Judge convicted the appellant for offence punishable under Section 302 of IPC and sentenced him to undergo life imprisonment with fine of Rs.5,000/- and hence, this appeal before this Court.
5. At the very outset, learned counsel for the appellant submits that there is no legal evidence against the appellant. All the eye witnesses namely Nilesh (PW-1), Jeevan (PW-3), Sitadevi (PW-4), Chandabai (PW-5) and Poonamchand (PW-6) have not supported the case of the prosecution and they have turned hostile. All of them have stated that when Anandibai was collecting twigs fallen from the babool tree due to storm, at that time, one broken branch had fallen on Anandibai due to which she got injury on her forehead.
6. The learned trial Court also in paragraph 10 of the judgment had dealt that there is no direct evidence against the appellant that he murdered Anandibai and in paragraph 11, the trial Court found that in this case circumstantial evidence should be considered to prove the charge.
7. Learned counsel for the appellant submits that there is no direct evidence against the appellant and all the eye witnesses and the complainant have turned hostile and did not support the case of the prosecution. On the basis of circumstantial evidence no conviction can be held.
8. Pet contra earned counsel for the State submits that although all the eye witness have turned hostile and did not support the prosecution case, but it is a case in which innocent Signature Not VerifiedDigitally signed by person was murdered by blow of axe inflicted by the SAN REENA JOSEPH Date: 2022.02.07 13:35:52 IST 4 Cr.A.No.6208/2020 accused/appellant and blood stained axe was recovered from appellant as well as blood stained T-shirt and pant worn at the time of incident. It is also submitted that no explanation had been given by the appellant regarding blood stain on his clothes worn at the time of incident. As per the FSL report, there was human blood on the T-shirt and pant of the appellant worn at the time of incident. The prosecution produced evidence of Investigating Officer and in whole of the statement he has proved the investigation conducted by him, therefore, there is no strength in the argument of the learned counsel for the appellant that in the event of declaring the witnesses hostile by the Court, he is entitled for acquittal.
9. After hearing learned counsel for the parties following facts emerges for consideration:-
(i) out of 19 witnesses including all the eye witnesses turned hostile and did not support the case of the prosecution.
The author of the FIR Nilesh (PW-1), grandson of deceased turned hostile and did not support the case of the prosecution.
(ii) It is also worthwhile to observe that the grand son of the deceased Jeevan (PW-3), daughter-in-law of deceased Sitadevi (PW-4) grand daughter of deceased Chandabai (PW-5) all eye witnesses turned hostile and did not support the case of the prosecution.
(iv) In the examination under Section 313 of Cr.P.C. no question has been put before the appellant regarding that T-Shirt and pant on which human blood was found as per FSL report belongs to him.
Signature Not VerifiedDigitally signed by SAN REENA JOSEPH
(v) It is true that the investigating officer V.S.Dhamawat
Date: 2022.02.07
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5 Cr.A.No.6208/2020
(PW-17) and Vivek Kanodia(PW-18) have stated before the Court that they conducted the investigation fairly. Dr. Devendra Swami (PW-15) stated before the Court that there was injury upon the left side of the forehead which was caused by hard and blunt object and this injury may be caused from the back portion of the axe which was seized in this case.
10. Admittedly, the complainant and the eye witnesses have not supported the case of the prosecution and categorically have stated that Anandibai got injury on her forehead due to fall of broken branch of babool tree. Prosecution case is not based on circumstantial evidence. It is a case of direct evidence. As per the FSL report, Ex.P-32, no human blood was found on the axe. Although, human blood was found on the T-shirt and pant seized from the appellant, but there is no evidence that this blood is of the same blood group of deceased. Except this, there is no other evidence against the appellant.
11. The learned trial Court while accepting that there is no direct evidence, but on the basis of circumstantial evidence, the prosecution has proved its case with regard to the guilt of the accused/appellant for the alleged offence of murder.
12. In our opinion, even if the findings of the trial Court is accepted, then also the trial Court was required to access the case in the light of the fact whether the complete chain of facts is in existence or not because, as per the settled principle of law by Hon'ble the Apex Court, if conviction is based upon circumstantial evidence, then Court is required to see whether the prosecution has proved its case beyond reasonable doubt by leading the complete chain so as to hold the accused guilty. In the Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2022.02.07 13:35:52 IST case of Sharad Birdhichand Sarda Vs. State of Maharashtra 6 Cr.A.No.6208/2020 reported in AIR 1984 1622 the Hon'ble Apex Court gave five golden principles to adjudicate the case on the basis of the circumstantial evidence. Those five golden principles is incorporated in paragraph 152 and 153 of the aforesaid judgment which reads as under :-
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of Signature Not VerifiedDigitally signed by guilt is to be drawn should be fully established.
SAN REENA JOSEPH
Date: 2022.02.07
13:35:52 IST
7 Cr.A.No.6208/2020
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v.
State of Maharashtra where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
13. It is also worth while to observe that the conviction can be based upon the circumstantial evidence and recovery of weapon, but in the case of Mani Vs. State of Tamilnadu 2008 Cr.L.J SC 306 the Hon'ble Apex Court has held that the discovery of articles and weapon is a weak type of evidence, therefore, discovery cannot be relied upon wholly for conviction in such a serious matter of murder.
14. We have examined the entire evidence of this case. In our opinion although in the absence of direct evidence, the trial Court Signature Not VerifiedDigitally signed by has relied upon the circumstantial evidence, but witness of SAN REENA JOSEPH Date: 2022.02.07 13:35:52 IST 8 Cr.A.No.6208/2020 recovery of axe Ratanlal (PW-9) has not supported the case of the prosecution. Another independent witness of seizure memo Ex.P-18, Mohammad Iqbal was not examined. The trial Court aught to have considered this important aspect this case so as to adjudicate the serious case of murder. In our opinion, when the witness of recovery are not supporting the prosecution case to prove the recovery of weapon, then it creates serious doubt upon the prosecution case and in that case eventually it is the primary duty of the trial Court to consider the fact that the witnesses of recovery have not support the case of the prosecution. It is also pertinent to note that as per the FSL report Ex.P-32 no blood was found on the axe. It also reflects from the record that no proper opportunity has been given to the accused/ appellant to give explanation regarding human blood on the T-shirt and pant worn at the time of incident and seized from him in examination under Section 313 of Cr.P.C.
15. We have also examined the medical evidence. Dr. Devendra Swami (PW-15) in his cross examination admitted that when a branch of babool tree falls from 15 feet high, then the injury sustained by the deceased may be possible, therefore in view of the aforesaid reasons prosecution case becomes doubtful. In the totality of the discussions, we are of the view that the findings given by the trial Court on the basis of circumstantial evidence, in the absence of direct evidence is not in consonance with the law because the trial Court has completely ignored the important fact that all the eye witnesses including the witness of recovery of axe have not supported the case of the prosecution. In view of the above, it is a case in which benefit of doubt was to be given by Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2022.02.07 the trial Court to the accused/appellant, but in absence of direct 13:35:52 IST 9 Cr.A.No.6208/2020 evidence, instead of granting benefit of doubt to the accused/appellant, the trial Court convicted the accused/appellant for the alleged offence of murder on the basis of unfounded circumstantial evidence.
16. In view of the above, this appeal is allowed and the judgment dated 10.11.2020, passed by the learned Additional Sessions Judge, Badnangar, District Ujjain is hereby quashed and set aside. The accused/appellant Narendra Singh is in custody and therefore he shall be released forthwith if not required in any other case.
17. However, keeping in view, the provisions of Section 437(A) of Cr.P.C., the accused/appellant is directed to forthwith furnish personal bond in the sum of Rs.50,000/- with one solvent surety in the like amount to the satisfaction of the trial Court which shall be effective for a period of six months to the effect that in the event of filing of a petition against the judgment for grant of leave, the appellant, on receipt of notice whereof, shall appear before the Hon'ble Supreme Court.
(VIVEK RUSIA) (RAJENDRA KUMAR (VERMA))
JUDGE JUDGE
RJ
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN REENA JOSEPH
Date: 2022.02.07
13:35:52 IST