Back
1991 JLJ 564
V.D. Gyaniand V.S. Kokje, JJ.
Neeraj v. State of M.P.
Cr.A. No. 90 of 1991; against the judgment of Shri R.G. Phadke, 9th Additional Sessions Judge, Indore, passed in Sessions Trial No. 65 of 1989;
Decided on 18.4.1991.
The circumstances from which the conclusion of the guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must‘ or ‘should‘ and not ‘may be‘ established.
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.
The circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved; and 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. AIR 1952 SC 343, AIR 1984 SC 1622 and AIR 1973 SC 2622 followed. [Para 10
(2) Criminal P.C., 1973 -- S. 154 -- FIR lodged after police reached the spot -- absence of motive in FIR lodged by the son of deceased -- omission assumes importance. [Para 12
(3) Evidence Act, 1872 -- S. 154 -- witness deposing against prosecution story not declared hostile -- his testimony cannot be overlooked simply because he was relative of the accused -- accused is thereby led to believe that the evidence of such witness is not challenged by the prosecution -- prosecution cannot he heard at appellate stage that such evidence is not binding upon it. AIR 1989 SC 772 followed. [Para 12
(4) Evidence Act, 1872 -- S. 8 -- motive -- means a thing which moves or induces a person to act in a certain way -- a desire, fear or without means or consideration on the reason which influences a person‘s volition. [Para 14
(5) Evidence Act, 1872 -- S. 8 -- seeking motive of any person either from words, conduct or gesture -- such words, conduct or gesture must be fully and completely established -- mere possibility is not enough. AIR 1984 SC 1622 and AIR 1972 SC 656 followed. [Para 15
(6) Evidence Act, 1872 -- S. 3 -- accused living in the house of deceased for years together -- his presence on the fateful night in the house is not an incriminating circumstance. AIR 1979 SC 1620 and AIR 1963 SC 74 followed. [Para 22
(7) Criminal P.C., 1973 -- S. 313 -- incriminating circumstance put to the accused -- accused duly explaining the circumstance -- such explanation also supported by the investigation -- explanation must be given due weight. [Para 24
(8) Criminal P.C., 1973 -- S. 313(3) -- contents of expert report not put to accused -- mere pulling the report itself does not give rise to draw adverse inference against accused in absence of explanation. AIR 1979 SC 1566 followed. [Para 30
(9) Evidence Act, 1872 -- S. 45 -- merely establishing an article to be stained with blood is not sufficient -- blood should be proved to be human blood with group thereof. AIR 1956 SC 51 and AIR 1973 SC 337 followed. [Paras 31 & 32
(10) Criminal P.C., 1973 -- S. 154 and 161 -- informant neither disclosing the material fact in FIR nor mentioning it in his case-diary statement -- other witnesses also omitted it in their case-diary statements -- seizure memo connecting this fact also doubtful -- these glaring infirmities in prosecution evidence cannot be ignored. AIR 1966 SC 821 distinguished. [Paras 37 & 38
(11) Evidence Act, 1872 -- S. 45 -- bunch of hair found in fist of deceased -- no definite opinion given by doctor as to whether the seized hair were that of accused -- evidence is of no consequence. [Para 39
(12) Criminal P.C., 1973 -- S. 293(4) -- expert not falling under this provision -- his report is not admissible in absence of proof thereof -- such inadmissible evidence cannot be acted upon. AIR 1936 Mad. 501 relied on. [Para 42
(13) Evidence Act, 1872 -- S. 3 -- abrasion found on the right middle finger of the accused -- time at which abrasion inflicted as per medical report not tallying with the time of incident of murder -- accused also remained in police custody for interrogation -- circumstance is not an incriminating one even if absence of accused‘s explanation. [Para 46
(14) Evidence Act, 1872 -- S. 27 -- memos prepared even before the arrest of the accused -- only one pocket witness of memo examined excepting independent witnesses -- articles recovered not stained with human bloodd`recovery is inconsequential. AIR 1987 SC 1507 relied on. [Para 48
(15) Criminal P.C., 1973 -- S. 102(1) -- seizure of articles under -- should be got sealed by the panchas -- it should be proved that seal remained intact till the article was sent for examination -- unexplained delay is fatal to the prosecution. AIR 1976 SC 69, AIR 1956 SC 526, AIR 1978 SC 1511 and AIR 1980 SC 1314 followed. [Para 50
(16) Evidence Act, 1872 -- Ss. 27, 25 and 26 -- protection provided under sections 25 and 26 -- to be circumvented by manipulation or ingenuity should not be allowed -- so also possible misuse of section 27 cannot be allowed. AIR 1972 SC 975 and AIR 1976 SC 2256 followed. [Para 51
(17) Criminal P.C., 1973 -- S. 172 -- M.P. Police Regulations -- Regs. 746 and 633 -- case dairy not kept in accordance with these provisions -- pages not serially numbered -- it is a deplorable state of affairs -- case diary ordered to be kept in custody of Additional Registrar. [Para 54
(18) Penal Code, 1860 -- S. 302 -- double murder -- motive absent -- case entirely resting on circumstantial evidence -- chain of circumstances not proved beyond doubt -- investigation also not fair -- accused cannot be convicted. [Para 55
(19) Criminal P.C., 1973 -- S. 354(3) -- death sentence -- cannot be awarded in absence of special reasons therefor -- trial Court must seriously consider the guidelines indicated by the Supreme Court in AIR 1980 SC 896 and AIR 1983 SC 957. [Para 55
V.D. Gyani, J. -- 1. This death reference under section 366(1) CrPC by IXth Additional Sessions Judge, Indore is heard along with Criminal Appeal No. 90/91, preferred by accused Neeraj against his conviction and sentence of death under section 302 IPC as recorded by the trial Court vide its judgment dated 26th February, 1991 passed in S.T. No. 65/89. It's a case of double murder. The place of occurrence is House No. 46, New Dewas Road, Indore; time-night intervening 21st and 22nd of December, 1988. A couple, Prakash s/o Dwarkadas Agarwal aged about 36 years and his wife Smt. Premlata Agarwal aged about 33 years were done to death. Deceased Prakash was found to be having apart from two minor abrasions, as many as ten incised wounds on his head allegedly inflicted with an axe, while his wife Premlata was throttled to death. Thumb pressure marks on her neck with nail scratches were observed on lower part of the neck.
2. First Information Report, Ex.P.1 was lodged at 8.40 a.m. on 22.12.1988 at Police Station Tukoganj, Indore where Crime No. 847/88 (as it appears in Ex.P.1) was registered under section 302 IPC and investigations proceeded.
3. The situation and occupants of the house has some bearing on the case. It is also, therefore, noted. House No. 46, New Dewas Road, Inuore is a single storyed house. The incident is said to have taken place on the first floor. As per inmates, of the house, apart from the deceased their two sons PW-2 Ghanshyam and PW-8 Naresh, accused Neeraj who happens to be the nephew (sister's son 'BHANJA') of the deceased, also lived in the same house along with his mother Shakun. These family members apart one Shreesh, a student of Local Engineering College also resided as a tenant, on the first floor in the same house. Dr. Surendra Agarwal has his clinic, just adjoining this house. Ex.P.2 is the sketch map of the house in question.
4. Deceased Prakash was running a fair-price grain shop just adjacent to the house. On the date of incident having closed the shop around 8.00 in the night, he returned home, had his meals and thereafter, had drinks in the company of his servants one Ganesh and Rajesh, a cycle shop owner. His son PW-2 Ghanshyam after taking meals was sitting at the shop or his uncle Prahlad just adjoining the house. Around 10.30 when Rajesh and Ganesh had left the deceased asked his son to get him pocket of cigarettes which he brought and supplied and again came to his uncle's shop. After some time he came home and went to bed along with his brother Naresh and cousin Sanjay who were on the ground floor.
5. As per FIR Ex.P.1 Ghanshyam having gone to bed after giving cigarettes to his father, accused Neeraj came and went to sleep, in his room on the first floor. It was around 6.30, when Ghanshyam who was sleeping on the ground floor, went to awake his parents, who were sleeping on the first floor, but as it was still dark they did not awake so he returned. Around 8.15 a.m. it is said, his younger brother Naresh went to awake their mother, but only to return and report that their mother was bleeding from the mouth and was not speaking at all. On being informed neighbours also collected. It was Radhakishan, who declared to the brothers son that their parents were dead. Dr. Dube was sent for immediately, who also rushed in only to find the couple dead. It was after his visit that FIR Ex.P.1 came to be lodged by PW-2 Ghanshyam at 8.40 a.m.
6. This report Ex.P.1 led to registration of Crime No. 847/RR (as it seemingly appears in the FIR Ex.P.1) under section 302 IPC and investigation proceeded. The I.O. (PW-6) visited the spot and prepared spot map Ex.P.2. The blood stained bed sheets, pillow covers, quilets and blood stained soil were seized. It is also claimed that a bunch of hair found in the right hand fist of deceased Premlata was also seized and recovered as per seizure memo Ex.P.5. Inquest Ex.P.13 and P.14 were also prepared followed by requisitions for post mortem examinations. The acc
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
