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2021 Supreme(MP) 152
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BENCH
Anand Pathak, Vishal Mishra, JJ.
Balveer Singh and Ors. – Appellants
Versus
State of M.P. and Ors. – Respondents
Criminal Appeal Nos. 394 of 2009 and 500 of 2009
Decided On : 15-01-2021
Advocate Appeared:
For the Appellant : Atul Gupta, A.R. Shivhare and Aditya Singh Ghuraiya, Learned PL
For the Respondent: Aditya Singh Ghuraiya, Learned PL, M.K. Chaudhary, V.K. Agrawal, Learned Counsel, Atul Gupta, B.S. Gour and Anoop Nigam, Learned Counsels
The prosecution must prove the case beyond reasonable doubt. The last seen theory, dying declaration, extra judicial confession, and the absence of motive were insufficient to establish the guilt of the accused.
Headnote:
Last Seen Theory - Criminal Appeal - Section 302 of IPC - Section 25/27 of the Arms Act - [Section 302 of IPC, Section 25/27 of the Arms Act] - The court discussed the last seen theory, dying declaration, extra judicial confession, and the absence of motive. The court found that the prosecution failed to prove the case beyond reasonable doubt, leading to the acquittal of the accused. The judgment affirmed the trial court's findings and acquitted the accused Balveer Singh and co-accused Radheshyam.
Fact of the Case:
The appellant, Balveer Singh, was convicted for the offence under Section 302 of IPC. The case revolved around the incident where the appellant and co-accused visited the house of the deceased and later the appellant fired gunshots at the deceased. The trial court acquitted the co-accused from the charge of offence under Section 302/34 of IPC and acquitted the appellant from the charge of offence under Section 25/27 of the Arms Act. The appellant appealed against the conviction.
Finding of the Court:
The court found that the prosecution failed to prove the case beyond reasonable doubt. The last seen theory, dying declaration, extra judicial confession, and the absence of motive were discussed and found to be insufficient to establish the guilt of the accused. The judgment affirmed the trial court's findings and acquitted the accused Balveer Singh and co-accused Radheshyam.
Issues: The issues revolved around the sufficiency of evidence to prove the guilt of the accused beyond reasonable doubt, including the last seen theory, dying declaration, extra judicial confession, and the absence of motive.
Ratio Decidendi: The court held that the prosecution failed to prove the case beyond reasonable doubt, leading to the acquittal of the accused. The last seen theory, dying declaration, extra judicial confession, and the absence of motive were insufficient to establish the guilt of the accused.
Final Decision: The appeal of the appellant, Balveer Singh, was allowed, and that of the State Government was dismissed. The accused Balveer Singh was directed to be released forthwith.
JUDGMENT :
1. Regard being had to the commonality of issue and since arising from the same judgment dated 20/5/2009 passed by Sessions Judge, Morena, both these appeals (Cr. A. No. 394/2009 and 500/2009) were heard analogously and decided by this common judgment. For convenience sake, facts from Criminal Appeal No. 394/2009 are being taken.
2. In Criminal Appeal No. 394/2009, appellant-Balveer Singh is aggrieved by judgment dated 20/05/2009 passed by Sessions Judge, Morena in Sessions Trial No. 69/2006; whereby, appellant/accused has been convicted for offence under Section 302 of IPC and awarded punishment for life imprisonment alongwith fine of Rs. 5,000/- and in default of payment of fine to further undergo one month's rigorous imprisonment. While passing the judgment, trial Court acquitted co-accused Radheshyam from charge of offence under Section 302/34 of IPC and acquitted Balveer Singh from charge of offence under Section 25/27 of the Arms Act, therefore, State has preferred Criminal Appeal No. 500/2009 against acquittal so recorded.
3. As per the case of prosecution, on 2/7/2005, Balveer Singh alongwith co-accused Radheshyam visited the house of deceased Surendra at 7 pm where he met his father Antram (PW/1) as well as Surendra and called Surendra for conversation. After 15-20 minutes of conversation, appellant and co-accused took Surendra alongwith them and later on appellant-Balveer Singh fired two gunshots from his country made pistol (Katta) and fled. Since, cousin of Surendra; namely Ravi Rajpoot was going from the same road, where this incident took place, therefore, he alongwith some other persons tried to take Surendra to hospital in Tractor Trolley but meanwhile police jeep came to the spot and took injured Surendra to Police Station, where FIR was registered at 7.50 pm.
4. After registration of FIR, injured was taken to Government Hospital, Jaura, where dying declaration was recorded and after primary treatment, he was referred to District Hospital, Morena but in transit, he succumbed to the injuries and found dead at District Hospital, Morena. Case was registered and investigation carried out.
5. Balveer Singh was arrested on 29/05/2006, after almost 11 months from the date of incident and Katta was seized on his information vide Ex. P/9 on 1/6/2006. Another co-accused Radheshyam was arrested on 3/1/2006 after statement of Uttam Singh (PW/6) on 2/1/2006. Statement of father of deceased namely Antram was taken as PW/1, in which he referred the incident of last seen; whereby, both the accused took deceased Surendra alongwith them and evidence of Ravi Rajpoot was taken as PW/2 as eye witness. Evidence of Uttam Singh (PW/6), uncle of deceased was taken for purpose of extra judicial confession of co-accused Radheshyam. After investigation, charge-sheet was filed.
6. Prosecution lead evidence of total 17 witnesses in which some were eye-witnesses, two were for the purpose of last seen theory and some were departmental witnesses. Rakesh, brother of Surendra was Court Witness, CW/1. From defence side, one defence witness was examined.
7. After appreciating the evidence, documentary as well as oral; led by the parties and necessary facets of the controversy, trial Court acquitted the co-accused-Radheshyam from charge of offence under Section 302/34 of IPC and acquitted the present appellant-Balveer Singh from charge of offence under Section 25/27 of the Arms Act but trial Court convicted him for offence under Section 302 of IPC. Incidentally, trial Court disbelieved the prosecution story on the basis of dying declaration, eye witness account, seizure of weapon and extra judicial confession of co-accused Radheshyam but only on the basis of last seen theory, convicted the appellant-accused Balveer Singh for offence under Section 302 of IPC and sentenced him as mentioned hereinabove.
8. It is the submission of learned couns
