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2004(2) JLJ 372
S.L. Kochar and A.K. Tiwari, JJ.
Dev Prakash v. State of M.P.
Cr. Appeal No. 309 of 1995; against the judgment of I Additional Sessions Judge, Mhow, passed in Sessions Trial No. 210 of 1989;
Decided on 11.11.2003.
(2) Penal Code, 1860 -- S. 302 -- murder -- no direct evidence available -- circumstantial evidence not forming complete chain accused entitled to acquittal.
On 27.4.1989 in the night, during patrolling, police received information near Bherugarh from Jeet (PW 3) about a dead body lying in a nala. ... Post mortem was performed of the unidentified body. ... After identification of the dead body police interrogated the relations of the deceased and according to them deceased went alongwith acquitted co-accused Mahesh and present appellant from his house on 26.4.1989, thereafter did not come back. [Para 2
Held: There is no dispute that apart from the evidence of last seen together and blood stained clothes of the appellant, there is no other evidence available on the record. The evidence of last seen together is inherently a weak kind of evidence and the same requires strong corroboration by independent material particulars which is not available in the present case. The blood stained clothes are of no consequence because there is no report that the clothes were containing human blood tallying with the blood group of deceased.
The conviction of the appellant is based on circumstantial evidence and the rule of circumstantial evidence is that prosecution is required to prove beyond all reasonable doubt each circumstance independently forming chain pointing towards the guilt of the accused excluding all reasonable hypothesis of his innocence in his favour. Here in the present case, there is absolutely no motive for the appellant to commit murder of the deceased and there is also no chain of circumstances to establish that the appellant was the person who committed murder of deceased. AIR 1987 se 1507 followed. [Paras 11 & 12
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Kochar, J. -- 1. The appellant has filed this appeal dissatisfied with the judgment passed on 7.4.1995 rendered in S.T. No. 210/89 by learned 1st Addl. Sessions Judge, Mhow, District Indore, whereby convicted the appellant u/s 302 IPC and sentenced to undergo RI for life and fine of Rs. 5001-; in default of payment of fine to undergo one month RI.
2. The prosecution case as put forth before the trial Court was that on 27.4.1989 in the night, during patrolling, police received information near Bherugarh from Jeet (PW 3) about a dead body lying in a nata. On this information, marg No. 6/89 (Ex. P-1) was registered. For protection of the dead body one chowkidar was deputed and on 2R.4.1989 inquest of the dead body vide Ex. P-2 was prepared. Map (Ex. P-3) was also prepared on the same day. Police has seized blood stained earth, stone and controlled earth and stone. From the spot one blue colour chappal, white glass, broken soda bottle, small button and other articles were seized through Ex. P-27. Up to that time body was not identified by anybody. It was the body of unknown person. From the grip of the deceased certain hairs were also seized. These hairs were sent for examination to the expert. But no such report was filed by the prosecution. Post mortem was performed of the unidentified body on 28.4.1989. Post mortem report is Ex. P-15 On 30.4.1989 in presence of Munna S/o Baburam, copper ring having white stone was seized. Pant, shirt and chappals were also seized from the body of the deceased. On the basis of clothes, slipper and copper ring, the body was identified by Yakub S/o Stu Demelo aged 24 years, resident of Chotti Khajrani, No. 1158, MIG Colony, Indore. After identification of the dead body police interrogated the relations of the deceased and according to them deceased went alongwith acquitted co-accused Mahesh and present appellant from his house on 26.4.1989, thereafter did not come back. Yakub, the brother of the deceased had lodged gumshudgi report in MIG Police Station. On the basis of this, the MIG Police has registered. marg No. 19/89. The acquitted accused Mahesh and appellant Dev Prakash were called in the P.S. for investigation. From their possession, on their disclosure statement u/s 27 of the Evidence Act, the clothes and luna scooter were seized. Vide seizure memo Ex. P-9 pant and bushirt were seized from the possession of the appellant Dev Prakash. These articles were sent to Forensic Science Laboratory and according to Laboratory report (Ex. P-31), Pant-Article one and Shirt-Article two were containing blood. But serologist report was not filed and there is no evidence adduced by the prosecution whether it was the human blood or blood tallying with the blood group of deceased. The appellant and the acquitted co-accused Mahesh were arrested.
3. After due investigation, the chargesheet was filed. The learned trial Court framed the charges u/s 302 and 302/34 of IPC against the appellant and acquitted co-accused. Their defence was one of denial and they claimed for trial. After trial, the co-accused Mahesh has been acquitted and the present appellant is convicted as mentioned above.
4. We have heard Shri Jaisingh, learned Sr. Counsel instructed by Shri Vivek Singh for the appellant and Shri G. Desai, learned Dy. A.G. for respondent-State.
5. The conviction of the appellant is mainly based on the testimony of Rozy (PW 1) and Stu Demelo (PW 2); the sister and father of the deceased, respectively as well as Forensic Science Laboratory Report (Ex. P-31), disclosing the presence of blood on the pant and shirt of the appellant. The learned trial Court has given finding in paragraph 22 of the judgment that prosecution failed to establish any motive for commission of crime.
6. Rozy (PW 1) has deposed that three years prior to the date of her examination in Court, in summer days in the night at 11.00 p.m. she and her brother Pascal was in the house. The appellant and the acquitted co-accused Mahesh c
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