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1996 JLJ 608
R.D. Shukla and S.B. Sakrikar, JJ.
State of M.P. v. Manoj and another
Cr. Appeal No. 301 of 1989; against the judgment passed by Shri S.N.
Sharma, 4th Additional Judge to the Court of Sessions Judge, Indore, in
Sessions Trial No. 282 of 1985; Decided on 2.4.1996.
Although the powers of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet, as a rule of prudence, the High Court should always give proper weight and consideration to matters e.g. (1) the view of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by Judge who had the advantage of seeing the witnesses. If on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible, one as held by the trial Court for acquitting the accused, and the other for convicting the accused, in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial Court. AIR 1988 SC 1158 followed. [Para 27
(2) Evidence Act, 1872 -- S. 3 -- circumstantial evidence of last seen together -- not established by direct evidence -- cannot be assumed by conjectures. [Para 31
(3) Criminal Practice -- two inferences possible from proved facts -- one in favour of accused to be drawn. [Para 32
(4) Criminal Practice -- accused searched the deceased alongwith her family member -- Gumshudi report lodged thereafter -- abnormal conduct of accused not mentioned in such report -- story of conduct is afterthought. [Para 33
(5) Criminal Practice -- prosecution documents interpolated and full of suspicion -- rightly not relied on. [Para 40
(6) Evidence Act, 1872 -- S.9 -- identification after one year on the basis of photograph in Court n no identification parade arranged n such dock identification cannot be relied on. [Para 42
(7) Criminal Practice -- investigation officer padding and suppressing or distorting facts in zeal of success -- on this background the circumstantial evidence has to be evaluated. AIR 1976 SC 69 followed. [Para 42
(8) Evidence Act, 1872 -- S.9 -- no test identification parade arranged to test power of observation -- identification of accused for the first time in Court is valueless. AIR 1980 SC 1322 and AIR 1979 SC 1127 followed. [Para 43
(9) Evidence Act, 1872 -- S.9 -- test identification for article - chit pasted on article to be identified -- identification becomes valueless. [Para 48
(10) Criminal P.C., 1973 -- S.161 -- material particulars missing in police statement -- statement in Court improved. [Paras 47 & 48
(11) Evidence Act, 1872 -- S.27 -- recovery made from open place -- all memos prepared on same day but shown to have been prepared on different dates -- creates doubt as to impartiality of investigation -- investigation officer has to bring in Court real unvarnished truth. AIR 1974 SC 1822 followed. [Para 57
(12) Penal Code, 1860 -- Ss.364, 302 and 201/34 -- offences under -- based on circumstantial evidence -- chain of circumstantial evidence not connecting the accused -- no conviction can be recorded. AIR 1984 SC 1622 followed. [Para 60
¼1½ naM çfØ;k lafgrk] 1973 & /kkjk 378 & nks"keqfDr ds fo#) vihy & çKk dk fu;e rFkk fopkj ds fy, ç‘uA
;|fi mPp U;k;ky; dks lk{; ds iquewZY;kadu vkSj Lo;a ds fu"d"kZ fudkyus dh ‘kfDr;k¡ mruh gh foLrh.kZ gSa ftruh nks"kflf) ds fo#) vihy esa( rFkkfi çKk ds fu;e ds :Ik esa mPp U;k;ky; fo"k;ksa dks lnSo mfpr egRo nsxk vkSj mu ij fopkj djsxk] mnkgj.kkFkZ ¼1½ lk{khx.k dh fo‘oluh;rk ds ckjs esa fopkj.k U;k;ky; dh jk;( ¼2½ vfHk;qDr ds i{k esa funksZf"krk dh mi/kkj.kk & mi/kkj.kk tks bl rF; ls fuf‘pr gh nqcZy ugha gqbZ fd og fopkj.k esa nks"keqDr fd;k x;k gS( ¼3½ vfHk;qDr dks fdlh lansg ds Qk;ns dk vf/kdkj] rFkk ¼4½ U;k;/kh‘k ds] ftls lk{khx.k dks ns[kus dh ykHknk;d fLFkfr çkIr Fkh] rF; dk fu"d"kZ fo{kqC/k djus esa vihy U;k;ky; dh vfuPNqdrkA ;fn lk{; ds ewY;kadu rFkk fo|eku lqlaxr ifjfLFkfr;kas ij fopkj djus ij ;g fu"d"kZ fudyrk gS fd nks jk; laHko gS] igyh fopkj.k U;k;ky; }kjk ;FkkvfHkfu/kkZfjr vfHk;qDr dks nks"keqDr fd, tkus dh rFkk nwljh vfHk;qDr dks fl)nks"k Bgjk, tkus dh( ,slh fLFkfr esa mPp U;k;ky;] fopkj.k U;k;ky; }kjk fn, x, nks"keqfDr dk vkns‘k fo{kqC/k ugha djus ds çKk ds fu;e ls ekxZn‘kZu çkIr djsxkA , vkb vkj 1988 ,l lh 1158 vuqlfjrA ¿iSjk 27
¼2½ lk{; vf/kfu;e] 1872 & /kkjk 3 & vafre ckj ,d&lkFk ns[ks tkus dk ikfjfLFkfrd lk{; & çR;{k lk{; }kjk LFkkfir ugha & vuqeku ls xzg.k ugha fd;k tk ldrkA ¿iSjk 31
¼3½ nkafMd çFkk & lkfcr rF;ksa ls nks fu"d"kZ fudkyuk laHko & vfHk;qDr ds i{k dk fudkyk tkuk pkfg,A ¿iSjk 32
¼4½ nkafMd çFkk & vfHk;qDr us e`rd dh [kkst] e`rd ds dqVqafc;ksa ds lkFk dh & xqe‘kqnxh dh fjiksVZ mlds i‘pkr~ nkf[ky dh xbZ & ,slh fjiksVZ esa vfHk;qDr ds vlkekU; vkpj.k dk mYys[k ugha & vkpj.k dk o`Ùkkar vuqcks/k gSA ¿iSjk 33
¼5½ nkafMd çFkk & vfHk;kstu nLrkostksa çf{kIr rFkk ‘kadkiw.kZ & Bhd gh voyafcr ugha fd;k x;kA ¿iSjk 40
¼6½ lk{; vf/kfu;e] 1872 & /kkjk 9 & QksVks ds vk/kkj ij U;k;ky; esa ,d o"kZ i‘pkr~ ‘kuk[r&‘kuk[r ijsM vk;ksftr ugha dh xbZ & ,slh dB?kjk ‘kuk[r voyafcr ugha dh tk ldrhA ¿iSjk 42
¼7½ nkafMd çFkk & lQyrk dh mÙkstuk esa vUos"k.k vf/kdkjh }kjk rF;ksa dk foLrkj rFkk fNik;k tkuk vFkok foÑr fd;k tkuk & ifjfLFkfrd lk{; dk ewY;kadu bl i`"BHkwfe esa fd;k tkuk gksxkA , vkb vkj 1976 ,l lh 69 vuqlfjrA ¿iSjk 42
¼8½ lk{; vf/kfu;e] 1872 & /kkjk 9 & laçs{k.k dh ‘kfDr ds ijh{k.k ds fy, ijh{k.k ‘kuk[r ijsM vk;ksftr ugha dh xbZ & vfHk;qDr dh U;k;ky; esa igyh ckj ‘kuk[r ewY;ghu gSA , vkb vkj 1980 ,l lh 1322 rFkk , vkb vkj 1979 ,l lh 1127 vuqlfjrA ¿iSjk 43
¼9½ lk{; vf/kfu;e] 1872 & /kkjk 9 & oLrq ds fy, ijh{k.k ‘kuk[r & ‘kuk[r dh tkus okyh oLrq ij fpV fpidkbZ xbZ & ‘kuk[r ewY;ghu gks tkrh gSA ¿iSjk 48
¼10½ naM çfØ;k lafgrk] 1973 & /kkjk 161 & iqfyl dFku esa rkfRod fof‘kf"V;ksa dk yksi & U;k;ky; esa dFku lq/kkjk x;kA ¿iSjk 47 rFkk 48
¼11½ lk{; vf/kfu;e] 1872 & /kkjk 27 & cjkenxh [kqys LFkku ls dh xbZ & leLr Kkiu ,d gh fnu rS;kj fd, x, fdarq fofHkUu fnukadksa esa rS;kj gq, fn[kk, x, & vUos"k.k dh fu"i{krk ds ckjs esa lansg mRiUu djrk gS & vUos"k.k vf/kdkjh dks U;k;ky; eas lR; fcuk jax&jksxu ds ykuk gksrk gSA , vkb vkj 1974 ,l lh 1822 vuqlfjrA ¿iSjk 57
¼12½ naM lafgrk] 1860 & /kkjk 364] 302 rFkk 201@31 & vijk/k & ikfjfLFkfrd lk{; ij vk/kkfjr & ikfjfLFkfrd lk{; dh J`a[kyk esa vfHk;qDr la;ksftr ugha & nks"kflf) vfHkfyf[kr ugha dh tk ldrhA , vkb vkj 1984 ,l lh 1622 vuqlfjrA ¿iSjk 60
R.D. Shukla, J.--1. Appeal is directed against the judgment arid order dated 12.5.89 of the IVth Addl. Sessions Judge, Indore passed in S.T. No. 282/85 whereby accused-respondents have been acquitted of the offences punishable Vis. 364, 302 and 201/34 IPC for having committed abduction for murder and murder of Jayasingh alias Pinki on the evening of 18.9.85 and for causing disappearance of evidence for screening the offender by throwing the dead-body in the forest of Manpur.
2. It is not in dispute that Jayasingh alias Pinki was daughter of one Jaisingh (PW. 1) and P.W. 23 Krishnasingh. Madhulika (PW. 4) and Jitendrasingh (PW. 8) are sister and brother of Jayasingh. Jaya alias Pinki was a student of B.Sc. Pt. I and was studying in Holkar Science College, Indore. She was aged 17 to 18 years at the time of her death, her birth being of 7th Dec. 1967 (Ex. P/55).
3. Accused Manoj Gupta was studying in Class XI in New Look School. Earlier to it, both were studying in the same school. Accused Ramdeen was the driver of accused Manoj at the time of incident.
P.W. 1 Jaisingh and Teluram (father of accused Manoj) are neighbours.
It is alleged accused had intimacy with Jaya alias Pinki (indirectly it is also suggested that probably they had illicit relations as such Jaya alias Pinki became pregnant).
On the date of incident accused and Jaya were seen talking something privately by the side of the house. Thereafter Jaya alias Pinki left the house with a bag and dressed up with Kurti, Pajama and Dupatta. It was festival of Ganesh Chaturthi as such her mother Krishna Singh had applied Mehdi and Mahavar on her feet. Jorawarsingh (PW. 18) who was a servant in the house of Jaisingh heard the sound of starting of mother-car in the house of accused.
4. It is alleged that both the accused i.e. Manoj and Ramdeen met her (Jaya) on the way. They took her in the car in the jungle of Manpur. She was strangulated and the body was thrown in jungle.
5. As Jaya did not return in the night a search was made. Accused Manoj and the relations of Jaisingh participated in the search. Jaisingh inquired about Jaya from Manoj who denied about having any knowledge of her. It is alleged that his conduct was abnormal. He was up-set. His look was indicating as if he has consumed liquor as his eyes were red. Jaya could not be traced, as such a report regarding her 'Gumshudgi' was made by Jaisingh on 19.9.85 vide Rojnamcha No. 2212 vide Ex. P/1. Her marks of identification - white complexion, thin body, height 4'10" was also disclosed. It was also informed that while leaving the house she was wearing white Pajama, orange printed Kurti and Chunni (Dupatta). She was having a brown-coloured purse and wearing a wrist-watch.
5. Since Jaya could not be traced an offence V/s. 363/366 IPC vide Crime No. 554/85 (Ex.P/50) was registered by M.L. Kalme, S.L, Police Station-MIG Colony, Indore.
6. On 20th Sept. 85 Punja (PW. 3) Chowkidar received information about dead-body of a woman lying in the jungle near village Kali Kiray. This information was passed to him by Forest-guard Rajaram (PW. 20). He (Punja), therefore, lodged a report in Police-station Manpur vide Ex. P/6. The same was recorded by P.W. 12 Harnamsingh who registered a Marg No. 44/85. P.W. 25 Charansingh - Police Inspector, visited the spot on 21.9.85 at about 8.30 a.m. It was in the forest of Kali Kiray. The dead-body was of a woman who was wearing Kurti Salwar and was having a Dupatta. She was wearing Pajeb in her feet. There was a big stone kept over her mouth. She had marks of Mehdi and Mahawar on her hands and feet. As such, Shri Charansingh prepared inquest Report Ex. P/7 and sent the body for post-mortem examination with a letter of request Ex. P/11.
7. On 21.9.85 Dr. Prakash Chandwaskar (P.W. 6) conducted autopsy on the body, and found as follows:-
Body of an average built lady, foul smelling coming out from her body.
Body was highly decomposed. Meguts were present all over the body. There was d
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