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2008(1) JLJ 128
A.K. Gohil and Sheela Khanna, JJ.
State of M.P. v. Mahesh and another
Criminal Appeal No. 360 of 1996 (Gwalior) : against the judgment passed by Additional Sessions Judge, Lahar, District Bhind, in Sessions Trial No. 186 of 1989; decided on 16.8.2007.
Trial Court after considering the evidence of last seen as well as the evidence of memorandum found that both type of evidence is not at all reliable. Trial Court found that the witnesses of last seen had not given information to the Investigating Officer in the next morning when the police and family members were searching the missing boy, that they had seen Kallu who was carrying Amit in his lap in the night and, therefore, has not placed reliance thereon. So far as the evidence of memorandum is concerned, the trial Court found that it was prepared later on and in presence of both the witnesses who are related to the complainant party, as they both reached later on the spot when the dead body was taken out from the well, and considering the aforesaid evidence found that the prosecution has failed to prove the involvement of the appellant in the commission of crime by producing the evidence beyond reasonable doubt and acquitted the respondents, against which the State of M.P. has preferred this appeal. [Para 4
Held: There is no evidence on record about motive. The prosecution has not examined Kunwar Singh, who was the witness of last seen and the prosecution witnesses could not prove any of the motives mentioned by them against the accused. There is no evidence on record that Kallu, who was Bataidar was a person of suspicious character or inimical to the complainant party. When he was Bataidar why he will commit such a crime for the small thing. Whatever the motives have been shown by the prosecution are not believable and do not inspire confidence. [Para 10
(2) Evidence Act, 1872 -- S.3 -- evidence of last seen together -- not disclosed to anyone -- not reliable. [Para 5
(3) Evidence Act, 1872 -- S.27 -- deadbody seen by witnesses when it was taken out from well -- fact disclosed by witnesses was well known to police -- provision not attracted. AIR 1994 SC 2420, AIR 1983 SC 446 and AIR 1970 SC 1934 followed.
[Para 9
(4) Criminal P.C., 1973 -- 5.378 -- appeal against acquittal - there cannot be interference even if another view was possible. [Para 10
¼1½ lk{; vf/kfu;e] 1872 && /kkjk 8 && gsrq lkfcr ugha && vfHk;qDr dk lafnX/k pfj= Hkh lkfcr ugha && lk{; ij fo‘okl ugha fd;k tk ldrk tc vfHk;qDr ifjoknh dk cVkbZnkj Hkh gSA U;k;ky; us vafre ckj ns[ks tkus ds lk{; ds lkFk&gh Kkiu ds lk{; ij fopkj djus ds i‘pkr~ fu"d"kZ fudkyk fd vafre ckj lkFk ns[kus okys lkf{k;ksa us vxys lqcg] tc iqfyl vkSj ifjtu [kks;k ckyd <w¡< jgs Fks] vUos"k.k vf/kdkjh dks ;g tkudkjh ugha nh fd mUgksaus dYyw dks ns[kk Fkk tks jkr esa vfer dh xksnh esa ys tk jgk Fkk vkSj blfy,] mldk voyac ugha fy;k gSA tgk¡ rd Kkiu ds lk{; dk ljksdkj gS] fopkj.k U;k;ky; us fu"d"kZ fudkyk fd ;g ckn dks vkSj nksuksa lkf{k;ksa dh mifLFkfr esa rS;kj fd;k xk Fkk tks ifjoknh i{k ls lacaf/kr gS] D;ksafd os nksuksa LFky ij ckn esa igq¡ps tc ‘ko dq,¡ ls ckgj fudkyk tk pqdk Fkk( vkSj iwoksZDr lk{; ij fopkj djrs gq, fopkj.k U;k;ky; dk fu"d"kZ Fkk fd ;qfDr;qDr lansg ls ijs lk{; izLrqr dj ds vijk/k fd, tkus esa vihykFkhZ dh varxZzLrrk lkfcr djus esa vfHk;kstu foQy jgk gS rFkk izR;FkhZx.k dks nks"keqDr dj fn;k ftlds fo:) e-iz- jkT; us ;g vihy dh gSA ¼iSjk 4 vfHkfu/kkZfjr % gsrq ds ckjs esa dksbZ lk{; vfHkys[kxr ugha gSA vfHk;kstu us dq¡vj flag dh ijh{kk ugha dh gS tks vafre ckj lkFk ns[ks tkus dk lk{kh gS vkSj vfHk;kstu lk{khx.k] vfHk;qDr ds fo:) muds }kjk mfYyf[kr gsrqdksa esa dksbZ Hkh lkfcr ugha dj lds gSaA vfHkys[kxr dksbZ lk{; ugha gS fd dYyw tks cVkbZnkj Fkk] lafnX/k pfj= dk Fkk vFkok ifjoknh i{k ls mldh dksbZ ‘k=qrk FkhA tc og cVkbZnkj Fkk rks NksVh&lh ckr ds fy, og ,slk vijk/k D;ksa djrkA tks dqN Hkh gsrq vfHk;kstu }kjk nf‘kZr fd, x, gSa] fo‘oluh; ugha gSa vkSj fo‘okl izsjd ugha gSaA ¼iSjk 10 ¼2½ lk{; vf/kfu;e] 1872 && /kkjk 3 && vafre ckj lkFk ns[ks tkus dk lk{; && fdlh dks izdV ugha fd;k x;k && voyacuh; ughaA ¼iSjk 5 ¼3½ lk{; vf/kfu;e] 1872 && /kkjk 27 && lk{khx.k }kjk ‘ko rc ns[kk x;k tc og dq,¡ ls ckgj fudkyk x;k && lk{khx.k }kjk izdV fd;k x;k rF; iqfyl dks lqfofnr Fkk && mica/k ugha gksrkA , vkb vkj 1994 ,l lh 2420] , vkb vkj 1983 ,l lh 446 rFkk , vkb vkj 1970 ,l lh 1934 vuqlfjrA ¼iSjk 9 ¼4½ naM izfØ;k lafgrk] 1973 && /kkjk 378 && nks"keqfDr ds fo:) vihy && gLr{ksi ugha fd;k tk ldrk Hkys&gh vU; n`f"Vdks.k laHko gksA ¼iSjk 10
Gohil, J. -- 1. Appellant State of M.P. has preferred this appeal under section 378 of the Code of Criminal Procedure, after obtaining leave from this Court, against acquittal. In Sessions Trial No.186/89 the respondents were tried under section 302, read with section 201 of the Indian Penal Code, before the Additional Sessions Judge, Lahar, District Bhind. Vide judgment dated 29.6.1996 the trial Court acquitted the respondents, against which the State of M.P. has preferred this appeal.
2. Briefly stated prosecution story is as under:
That accused Kallu was working as Bataidar at the agricultural field of complainant Ajay Kumar at village Machchand. Kallu used to visit the house of Ajay Kumar daily, Ajay's sister Munni was married with one Jainarain. Munni had objected about the visit of Kallu at the house of Ajay Kumar and she was also objecting to keep him as Bataidar. It was also stated that Kallu had also asked for some money on loan from Jainarain, but Munni had refused to give him money. On account of this, Kallu was keeping enmity with Munni, Mahesh is having his house adjoining to the house of Ajay and there was dispute between Ajay and Mahesh for keeping the bullock-cart of Mahesh in front of the house of Ajay. It was also the prosecution case that once Mahesh had hid the plate of Malti and there was dispute on that count and, it was alleged that Mahesh was keeping enmity with the complainant party.
3. In the intervening night of 22nd and 23rd June, 1989 Munni and her 8 years' son Amit @ Nanu was sleeping in the house of his Mama at village lvlachchand, as Munni had come to her Maika on 22.5.1989. On the night of incident Amit was sleeping with Malti, who is the widow maternal aunt. There were some rains in the night, and because of that Malti lifted Amit @ Nanu and lay down him on the cot which was lying in the gallery near Mama Ravindra @ Kishori Radhe. In the morning it was found that Nanu was missing and gate of the house was found open. He was searched and thereafter missing report was lodged by Ajay Kumar at Police Chowki Machchand where missing Crime No. 01/81 was registered and the missing boy was searched by the police. It is also the prosecution case that on 24.6.1989 the dead body of Amit @ Nanu was found from the well of Sudhare. On the basis of the information given by accused Kallu, memorandum of information was prepared and thereafter at the instance of Kallu the dead body was recovered from the well of Sudhare. The dead body was referred for medical examination. The doctor found that the cause of death was asphyxia due to drawing nature of death was found as homicidal and duration was within 36 hours. The statements of the witnesses were recorded, matter was investigated and charge-sheet was filed. During trial the respondents adjured their guilt. Trial Court found two types of evidence - one was of last seen and for that two witnesses Raghuvanshi (PW2) and Ramkumar (PW8) were examined and another evidence was of memorandum. The memorandum EX.P-6 was prepared in presence of Shyamkishore Bohre (PWI2) and Chandraprakash @ Bhopali (PW 14), as the information was given in presence of these witnesses by the accused.
4. Trial Court after considering the evidence of last seen as well as the evidence of memorandum found that both type of evidence is not at all reliable. Trial Court found that the witnesses of last seen had not given information to the Investigating Officer in the next morning when the police and family members were searching the missing boy, that they had seen Kallu who was carrying Amit in his lap in the night and, therefore, has not placed reliance thereon. So far as the evidence of memorandum is concerned, the trial Court found that it was prepared later on and in presence of both the witnesses who are related to the complainant party, as they both reached later on, on the spot when the dead body was taken out from the well, and considering the aforesaid evidence found that the prosecut
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