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2019 Supreme(MP) 104
HIGH COURT OF MADHYA PRADESH
(DIVISION BENCH)
Huluvadi G. Ramesh and C. V. Sirpurkar, JJ.
Hem Singh v. State of M. P.
Criminal Appeal No. 1345 of 2012 (Jabalpur); against the judgment and sentence dated 13.6.2012 passed by the Additional Sessions Judge, Dindori, District Dindori in Sessions Trial
No. 61/2011; Decided on 15.2.2019
R. N. Dwivedi for appellant; Shashank Upadhyay,
Governmemnt Advocate for respondent/State.
Headnote:(1) Penal Code, 1860 -- S.302 -- last seen together -- time gap between accused last seen at spot and smoke emanating from spot -- more than 15 minutes after accused left room -- had it been the case of prosecution that accused remained there in room, or any iota of evidence to establish that accused left the place immediately after setting deceased to fire, and smoke was seen coming out from room -- it would have been a clear case of homicidal death and chain of circumstances would have been complete -- chain of circumstances is not complete so as to sustain conviction of appellant. (1996)11 SCC 264, (2001)9 SCC 736, (2005)12 SCC 438and (2017)8 SCC 497 followed. [Paras 20 & 22
(2) Penal Code, 1860 -- S.302 -- it is for prosecution to prove guilt of accused charged for such an offence -- that too, beyond reasonable doubt -- no eye-witness -- case rests on circumstantial evidence -- prosecution obligated to prove all those circumstances which leave no manner of doubt to establish guilt of accused -- chain of circumstances must be complete and must clearly point to guilt of accused. [Para 22
(3) Circumstantial Evidence -- chain of continuous circumstances -- meaning -- all the circumstances are linked up with one another and the chain does not get broken in between. [Para 22
(4) Circumstantial Evidence -- motive may be a very relevant factor. [Para 23
(5) Circumstantial Evidence -- motive -- no evidence that any altercation or hot-talk took place between deceased and accused -- no evidence on record to hold that accused suspected the fidelity of deceased -- going to one's paternal house cannot be any ground to doubt the character of woman unless any specific instance of such loose moral character is assigned -- merely on that lame excuse, no motive can be associated with appellant to kill deceased -- prosecution has to prove its case beyond reasonable doubt -- cannot take support from weakness of the case of defence - there must be proper legal evidence and material on record to uphold conviction of accused -- motive of accused to kill deceased is lacking -- on the contrary, there is reason to believe that since father was objecting to marriage of deceased with appellant and on date of incident also he had a talk with deceased over the same very issue, therefore, out of frustration the deceased committed suicide. [Paras 23 to 25
(6) Penal Code, 1860 -- S.302 -- accused was in live-in relation with deceased in the same house - father of deceased objected to their marriage -- time gap between accused last seen at spot and smoke emanating from spot is more than 15 minutes after accused left house -- except the fact that he suspected the character of deceased, nothing demonstrated by prosecution as to the intention and motive of accused to commit murder of deceased -- no such injury to consider it a homicidal death -- no clear and cogent evidence on record to infer that appellant committed the offence -- prosecution has not been able to prove guilt of appellant beyond reasonable doubt -- accused entitled to benefit of doubt. [Paras 27 to 29
¼1½ naM lafgrk] 1860 && /kkjk 302 vafre ckj lkFk ns[kk tkuk && vafre ckj LFky ij vfHk;qDr ds ns[ks tkus rFkk LFky ls /kqvk¡ mBus ds e/; le; dk varjky && vfHk;qDr ds dejs ls tkus ds i'pkr~ 15 feuV ls vf/kd && ;fn vfHk;kstu dk i{kdFku ;g gksrk fd vfHk;qDr dejs esa gh jgk] vFkok ;g LFkkfir djus ds fy, ys'kek= Hkh lk{; gksrk fd vfHk;qDr e`rdk dks vkx yxkus ds rqjar i'pkr~ ml LFkku ls pyk x;k vkSj dejs ls /kqvk¡ fudyrk ns[kk x;k && rc ;g ekuo oèk Lo:i dh gR;k dk Li"V ekeyk gksrk rFkk ifjfLFkfr;ksa dh J`a[kyk iw.kZ gks tkrh && ifjfLFkfr;ksa dh J`a[kyk iw.kZ ugha] ftlls vihykFkhZ dh nks"kflf) vfojr j[kh tk ldsA ¼1996½11 ,l lh lh 264] ¼2001½9 ,l lh lh 736] ¼2005½12 ,l lh lh 438 rFkk ¼2017½8 ,l lh lh 497 vuqlfjrA ¼iSjk 20 ,oa 22
¼2½ naM lafgrk] 1860 && /kkjk 302 && ,sls vijk/k ls vkjksfir vfHk;qDr dk nks"k vfHk;kstu dks lkfcr djuk gksrk gS && og Hkh ;qfä;qä lansg ds ijs && dksbZ izR;{kn'khZ lk{kh ugha && ekeyk ikfjfLFkfrd lk{; ij vk/kkfjr && vfHk;kstui{k og leLr ifjfLFkfr;k¡ lkfcr djus fy, ck/; gS ftuls vfHk;qDr dk nks"k LFkkfir djus esa fdlh izdkj dk lansg 'ks"k ugha jgs && ifjfLFkfr;ksa dh J`a[kyk dk iw.kZ gksuk rFkk vfHk;qDr dk nks"k Li"V bafxr djus okyh gksuk vko';d gSA ¼iSjk 22
¼3½ ikfjfLFkfrd lk{; && ifjfLFkfr;ksa dh fujarj Üka`[kyk && vFkZ && lHkh ifjfLFkfr;k¡ ,d&nwljs ls tqM+h gksa rFkk J`a[kyk chp esa VwVrh ugha gksA ¼iSjk 22
¼4½ ikfjfLFkfrd lk{; && gsrq cgqr lqlaxr dkjd gks ldrk gSA ¼iSjk 23
¼5½ ikfjfLFkfrd lk{; && gsrq && dksbZ lk{; ugha fd e`rdk vkSj vfHk;qDr ds e/; dksbZ >M+i ;k dgklquh gqbZ && ;g vfHkfu/kkZfjr djus ds fy, vfHkys[k ij dksbZ lk{; ugha fd vfHk;qä dks e`rdk ds lPpfj= ij lansg Fkk && vius iSr`d ?kj tkuk efgyk ds pfj= ij lansg djus dk vk/kkj ugha gks ldrk tc rd fd ,sls nqjkpkjh uSfrd pfj= dh dksbZ fofufnZ"V ?kVuk crkbZ ugha xbZ gks && ml fujkèkkj cgkus ds vk/kkj ij vihykFkhZ dks e`rdk dk o/k djus ds gsrq ls tksM+k ugha tk ldrk && vfHk;kstu dks viuk i{kdFku ;qfä;qä lansg ds ijs lkfcr djuk gksrk gS && izfrj{kk ds i{kdFku dh nqcZyrk ls leFkZu ugha ys ldrk && vfHk;qDr dh nks"kflf) ekU; djus ds fy, vfHkys[k ij mfpr oS/k lk{; vkSj lkexzh gksuk vko';d gS && e`rdk dk o/k djus ds fy, vfHk;qDr ds gsrq dk vHkko gS && rRizfrdwy] ;g fo'okl djus dk vk/kkj gS fd vihykFkhZ ds lkFk e`rdk ds fookg ij firk vkifÙk dj jgk Fkk rFkk ?kVuk ds fnukad dks Hkh mldh e`rdk ls blh fo"k; ij ppkZ gqbZ Fkh] blfy, fujk'kk ds dkj.k e`rdk us vkRegR;k dj yhA ¼iSjk 23 ls 25
¼6½ naM lafgrk] 1860 && /kkjk 302 && vfHk;qDr ds e`rdk ds lkFk mlh edku esa lg&fuokl ds laca/k Fks && e`rdk ds firk us muds fookg ij vkifÙk dh && vafre ckj LFky ij vfHk;qDr ds ns[ks tkus rFkk LFky ls /kqvk¡ mBus ds e/; le; dk varjky vfHk;qDr ds ?kj ls pys tkus ds i'pkr~ 15 feuV ls vfèkd dk && bl rF; ds flok; fd mls e`rdk ds pfj= ij lansg Fkk] e`rdk dh gR;k djus ds vfHk;qDr ds vk'k; vkSj gsrq ds laca/k esa vfHk;kstui{k }kjk dqN Hkh iznf'kZr ugha && ,slh dksbZ {kfr ugha ftlls mls ekuo o/k ekuk tk lds && ;g vuqeku djus ds fy, fd vihykFkhZ us vijk/k fd;k] vfHkys[k ij dksbZ Li"V vkSj rdZiw.kZ lk{; ugha && vfHk;kstui{k vihykFkhZ dk nks"k ;qfä;qä lansg ds ijs lkfcr ugha dj ldk && vfHk;qDr lansg ds Qk;ns dk gdnkjA ¼iSjk 27 ls 29
Ramesh, J. -- 1. Although the case is listed for consideration of I.A. No. 21802/2018, an application for suspension of sentence, but the learned counsel for the appellant submits that the appeal itself may be heard finally. Learned counsel for the respondent-State has no objection to the said proposition. Accordingly, we have heard learned counsel for the parties on merits.
2. The present appeal under section 374(2) of CrPC. has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 13.6.2012 passed by the learned Additional Sessions Judge, Dindori, District Dindori in Sessions Trial No.61/2011 whereby he has been convicted for the offence punishable under section 302 of the Indian Penal Code, 1860 and sentenced to suffer rigorous imprisonment for life and fine of Rs. 500/-; in lieu of fine amount, to further undergo R.I. for one year.
3. According to the prosecution story, it transpires that appellantaccused Hemsingh and deceased Urmila were having love affair for about four years and they wanted to marry each other. At the time of incident, they were in live-in relationship residing together as tenant in the house of Gautam Patwari situate at Jhurkitola, Old Dindori within the jurisdiction of Police Station Dindori, District Dindori. Sometimes, deceased Urmila would go to her house without informing Hemsingh, which led appellant Hemsingh doubt her character. A quarrel is said to have taken place between them over this issue on 5.5.2011, which got intensified on 6.5.2011 whereupon, at about 12.00 noon, appellant poured Kerosene over the deceased and set her ablaze. As a result, she died. A marg intimation was made to Police Station Dindori by the father of the deceased Yugal Kumar Maravi and on the basis of which an offence under section 302 of IPC was registered against the appellant and investigation was set in motion.
4. During the course of investigation, the dead body of the deceased was sent for post-mortem examination; memorandum statement of the accused was recorded and the seized articles were sent for examination. After completion of investigation, charge-sheet was filed in the competent Court, which on its turn committed the case to the Sessions Court and from where it was received by the trial Court for trial.
5. The learned trial Judge on the basis of the allegations made in the charge-sheet, framed the charge punishable under section 302 of IPC against the appellant, which the appellant denied and requested for trial. In order to prove the charges, prosecution examined as many as 16 witnesses and placed the documents Exhibits P-1 to Exhibit P-20 on record. The defence of the appellant is of false implication but he has not examined any witness in defence.
6. The learned trial Court, on the basis of the evidence placed on record, found the appellant guilty and came to hold that the charges are proved against the appellant and resultantly, convicted him and passed the sentence, as mentioned hereinabove. In this manner, this appeal has been filed by the appellant challenging the impugned judgment of conviction and order of sentence passed by the learned trial Court.
7. The argument of the learned counsel for the appellant is that the accused has been falsely implicated in this case. Since the father of the deceased was objecting to the marriage of the deceased with the appellant and scolded the deceased, therefore, due to instigation by her father, the deceased committed suicide; there is no prima facie case made out against the appellant for the alleged offence; there is no cogent evidence on record to sustain the conviction; the evidence of the prosecution witnesses Ajay Kumar Jharia (PW1) and Devesh Bisen (PW2), who are important witnesses, who have last seen the appellant, has not been properly appreciated. It is further contended that despite the examination of 16 witnesses, the learned Trial Court overlooking the important aspects convicted and sent
