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Madhya Pradesh High Court

Prakash Ahirwar vs The State Of Madhya Pradesh on 30 July, 2013

            HIGH COURT OF MADHYA PRADESH AT JABALPUR
                           Criminal Appeal No.573/2012


Appellant            :       Prakash Ahirwar son of Late Ramdayal
                             Ahirwar, aged about 35 years, resident of
                             Nai Basti Marhotaal, District-Jabalpur (M.P.)
                     Vs.
Respondent           :       The State of Madhya Pradesh
                             Through P.S. Gohalpur
                             District-Jabalpur (M.P.)


For appellant        :       Shri Hemant Namdeo, Advocate

For the respondent :         Shri Amit Pandey, Government Advocate

                                     Present:
                            Hon. Shri Justice Ajit Singh
                            Hon. Shri Justice B.D.Rathi

                                   JUDGMENT

( 30 /7/13) As per B.D.Rathi,J Being aggrieved with the judgment passed on 31/08/2005 in Sessions Trial No. 80/2005 by Sessions Judge, Jabalpur, this criminal appeal has been preferred by the appellant/accused, whereby the appellant has been convicted under section 364, 302, 201 of IPC and sentenced accordingly.

2. Prosecution case, in brief, is that Shubham was not traceable since 12/11/2004. Next day, at about 3 to 4 pm, when one Krishnakumar met Sunita, she weepingly informed him that her son Subham was missing since yesterday. Krishnakumar apprised her that her son was seen going with the appellant on a bicycle. On 24/11/2004, at about 1 pm at P.S. Gohalpur District Jabalpur, one Mithlesh Choubey gave the information that while he was harvesting his paddy field, he found a human skeleton, of a person aged about 10 to 12 years. This information was recorded as Morgue No. 0/2004 (Ex.P/1). After the criminal law was set in motion, it was found that Shubham had been murdered by the appellant and after investigation, charge-sheet was filed.

3. It was argued on behalf of the appellant that the whole case of the prosecution is based on circumstantial evidence and prosecution has failed to prove its case against the appellant, as the chain of circumstantial evidence was not complete, still the impugned judgment of conviction has been passed by the trial Court which is totally perverse and illegal. He, accordingly, prayed that the same be set aside.

4. Learned Government Advocate, while making reference to incriminating piece of evidence on record, submitted that the impugned judgment was well merited and deserved no interference. He further submitted that appellant was interested in marrying mother of Shubham and on her denial, had committed the gruesome offence adopting a revengeful attitude.

5. Having regard to the arguments advanced by the parties we have gone through the evidence and material available on record. A bare perusal of the record reveals that the entire case of the prosecution is based on circumstantial evidence.

6. Kishan Choubey (PW5), who is the witness of last seen, has been declared hostile. Although, it was deposed by him in paragraph 1 of his evidence that at about 1 or 1.30 p.m., he had seen appellant going on bicycle along with a child, aged about 18 years, yet he could not identify the child. From the aforesaid testimony, it cannot be deduced that Kishan had seen Shubham, aged about 10 years, going with the appellant on his bicycle. Another material witness of last seen viz. Khuman Singh was not examined. Therefore, accordingly, evidence of last seen, as adduced by prosecution, cannot be said to be established. For the sake of arguments, even if evidence of last seen is taken into consideration, then too, considering the fact that the skeleton was recovered from the field after a considerable period of 12 days, the same cannot be relied upon. Moreover, seizure of piece of sari allegedly used by the deceased for supporting his trousers at the instance of appellant, is also of no avail as the recovery was from an open place. Further, conviction cannot be based only on the ground that appellant wanted to marry mother of the deceased and it cannot be presumed that for wreaking venegance, he had committed the offence, particularly in absence of other corroborating evidence.

7. Thus, taking into consideration the facts and circumstances of the case and the evidence brought on record, we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt and the impugned judgment deserves to be interfered with.

8. The appeal is accordingly, allowed. Impugned convictions and the consequent sentences are hereby set aside. Appellant is acquitted of all the offences. Appellant is in jail. He be released forthwith if not required in any other case. Fine amout, if deposited, be refunded.

9. Copy of this judgment be sent to the trial Court for compliance.

        (AJIT SINGH)          (B.D.RATHI)
           JUDGE                 JUDGE
          30/7/13              30/7/13

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