Val Chand vs The State Of M.P. on 23 November, 2017

HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
D.B: HON’BLE SHRI JUSTICE P.K. JAISWAL
HON’BLE SHRI JUSTICE VIRENDER SINGH

CRIMINAL APPEAL 128 of 2006

Valchand S/o Mangu Dangi Bhil
Vs.
State of Madhya Pradesh
Whether approved for reporting: Yes/No

Shri Vivek Singh, learned counsel for the appellant.
Shri Amit Singh, learned Govt. Advocate for the
respondent/State.

JUDGMENT

(Delivered on 23/11/2017)

Per: Virender Singh, J.

1. Being aggrieved by judgment and order dated
14.12.2005 passed in S.T. No.272/05 by Session Judge,
District Jhabua whereby the learned trial Court has held the
appellant guilty for the offence punishable under Section 302
of IPC and sentenced him for life imprisonment with fine of
Rs.2,000/- and in default of payment of fine, to further
undergo R.I. for six months, the appellant has preferred the
present appeal.

2. In this case the appellant is brother-in-law
(Dewar) of the deceased, Rangji PW/1 is her cousin (son of
mama), Geetabai PW/5 is her sister-in-law (Nanand sister
of the appellant, Maan Singh PW/6 is her Nanandoi, Sonu
PW/4 is her daughter.

3. The prosecution case in brief is that on
17.07.2005, in the evening, the deceased Rajlibai slapped her
daughter Sonu, enraged by this she left house without
informing her. Worried Rajlibai asked the appellant to
accompany her to search Sonu. Looking for her at the
possible places, they reached to the house of Geetabai at
village Dolikhali and found Sonu there. They tried to take her
back home, but she did not agree and told them that she will
come in the next morning, then the deceased and the
appellant proceeded for their house from village Dolikhali to
Kali Sarai. At about 10:00 P.M., in the night, the appellant
went to Rangji and informed him that when sonu refused to
come with them, the deceased proceeded for her house at
Kalisaray. The appellant stayed there due to some work. After
finishing work when he was also coming back home, on the
way he saw dead body of Laljibai was lying on the ground in
Khodra nullah of Khetiya. But the accused refused to
accompany him (Rangji) to report the matter to the police.
Therefore, Rangji alongwith one Tadvi Mohan went to the
Police Chouki, Jhaknavda and intimated tha police at about
2:00 A.M. The Police registered Merg Intimation No.24/05
under section 174 of Cr.P.C. (Ex.P/12).

4. The police investigated the matter, visited the
spot in the morning at about 8:00 A.M., prepared Punchnama
Lash (Ex.P/2) and spot map, seized slippers of the deceased,
sent dead body for post-mortem. Dr. K.D. Mandloi (PW-13)
performed post mortem and opined that the death was due to
throttling and was homicidal in nature. The Police arrested
the accused on 20.07.2005 and identified some scratch marks
caused by nails on the neck of the appellant. The Police
suspecting that these marks might have been caused by the
deceased in his defence during brawl and got him examined
from the doctor. Charge-sheet was file after completing the
investigation.

5. The appellant was charged under Section 302 and
376 of IPC. He abjured his guilt. After trial, the learned trial
Court acquitted the appellant from the charges under Section
376 IPC and held him guilty under Section 302 of IPC and
punished him as stated in para no.1, above.

6. The appellant has preferred the present appeal on
the grounds that the judgment and order of the learned trial
Court is contrary to law and the facts of the case. The
findings of the learned trial Court neither legal nor proper nor
correct. The learned trial Court has committed error in
believing the prosecution witnesses and discarding the
version of the defense. It has drawn unwarranted inference
and did not consider material omissions and contradiction in
the statements of the prosecution witnesses. Therefore, it is
prayed that the judgement and order be set aside and the
appellant be acquitted.

7. Learned public prosecutor has supported the
judgment and order of the trial Court.

8. We have considered rival contentions of both the
parties and have gone through the record.

9. No challenge is made by the appellant to the
recovery of the dead body, the death of the deceased and the
fact that the death was caused due to asphyxia caused by
throttling and that the death was homicidal. The post-mortem
was conducted on 18.07.2005 and according to Dr. Mandloi,
the death was caused within 24 house of the post-mortem.
Thus, there is no doubt that at or about the alleged time, date
and place of the incident, the deceased was died and her death
was homicidal in nature.

10. There is no eye witnesses in this case and the entire
case of the prosecution is solely depends on the
circumstantial evidence.

11. The only circumstance, which the prosecution
could produce before the trial Court is that the deceased was
last seen alive in the company of the accused. To establish
this circumstance, the scratch marks found on the neck of the
accused have also been brought on record.

12. Sonu (PW-4)(daughter of the deceased), Geebabai
(PW-5) (Sister-in-law (Nanand) of the deceased and who is
also sister of the appellant) and Mansingh (PW-6) brother-in-
law (Nandoi) of the deceased) have stated and the appellant
has not challenged that on the date of incident Sonu went to
the house of her aunt (Bua) Geetabai at village Dolikhali and
the appellant alongwith the deceased went to the house of
Geetabai at Dolikhali in search of Sonu. They tried to take
her home back, but she refused and stated that she will come
in the next morning, the deceased and the appellant left the
house of Geetabai and proceeded for their village and next
morning they all came to know that the deceased is died in
the night near a nullah in the forest. Thus, without any doubt,
it is established that soon before her death, the deceased was
in the company of the appellant.

13. Rangji (PW-1) who had reported the matter to the
police has stated that the deceased was his cousin (daughter
of maternal uncle). He further stated that after the incident,
the appellant came to him in the night and revealed that he
went with the deceased to village Dolikhali and when they
were coming back and were on the way, some unknown
miscreants have caught them. Somehow he managed to
escape but they killed Rajilbai. On receiving this information,
Rangji alongwith Mukund, Mohan, Tadvi and many other
villagers went to the spot and found her dead body lying in
the nullah. Rangji immediately informed the matter to the
police. The police also visited the spot in the night, prepared
Panchnama Lash and spot map (Ex.P/2 P/3) and seized
slippers of the deceased (Ex.P/4).

14. One thing is clear from this statement that the
accused/appellant himself informed about the incident to
Rangji in the night itself. This witness further stated that the
appellant had made clamor in the village in the night that
some miscreants had caught both of them, but somehow he
could manage to escape. Mohan (PW-3) has supported his
statement. They all went to the forest and found the dead
body of the deceased Rajlibai. They approached the police.
All the time the appellant accompanied them everywhere. He
never tried to run away.

15. Rangji, in his statements, had stated that the
appellant disclosed before him that some unknown
miscreants had beaten him also and he also sustained injuries.
It has also come on the record that the deceased was a widow
and she was living with the appellant. Their relations were
cordial and no dispute was there between them (statements of
Rangji, Mohan, Gangaram, Geetabai Sonu).

16. The conduct of the appellant appeared from the
statements of all these witnesses, who have not been declared
hostile, shows his the natural behaviour just after the incident.
Injuries found on the body of the appellant are also duly
explained by the prosecution witness Rangji (PW-1) himself.

17. In first in time the Merg intimation it is mentioned
that the deceased left the house of her Nanand Geetabai one
hour prior to the appellant but in the Court the witnesses has
changed the sequence and have stated that they both have
proceeded together from the house of Geetabai. As per Merg
intimation the appellant had seen the dead body of the
deceased while as per their Court statements the appellant
reveal before them that some miscreants caught them both
and somehow the appellant could manage to escape.

18. Rangji has stated that on 18.07.2005 when he
intimated the incident to the police, the appellant was with
them at Police Chawki and after recording the intimation, the
police allowed them to go by detained the appellant, while as
per arrest memo, the appellant was arrested by the police on
20.07.2005. Nothing is mentioned in the Merg intimation that
at that time some injury or scratch mark were noticed on the
neck of the appellant. None of the witnesses Rangji,
Gangaram, Mohan or Maan Singh, who accompanied the
police at the time of seizure of the dead body, have stated that
they have ever seen any injury marks on the neck of the
appellant.

19. Thus, both of the circumstances putforth by the
prosecution becomes doubtful. If we consider the Court
statements of the witnesses as true, then it appears that the
incident was committed by some unknown miscreants, who
also caused injuries to the appellant. If we consider the story
narrated in the Merg, which though could not be brought on
record, then at the time of the incident, the appellant was not
with the deceased. Hence with both the angles the
prosecution case does not appear to be trustworthy.

20. Considering the relations between the accused and
the deceased, conduct of the accused just after the incident,
explanation of injuries of the appellant, absence of motive,
absence of seizure of any incriminating article coupled with
the fact that the charge of the rape was also not found proved
by the learned trial Court, nothing suspicious emerged out
which could lead to the conclusion of the guilt of the
appellant. The learned trial court has appreciated the evidence
only on the basis of bare facts without considering the
circumstances appeared in the statements of the witnesses and
only on the presumption that the appellant is guilty as he was
last seen in the company of the deceased. Such cryptic
appreciation cannot be accepted as correct. When we consider
the last seen theory in the context of surrounding
circumstances, two views appears to be possible and in that
case certainly benefit will go to the appellant.

21. It is now well settled that last seen theory alone is
not sufficient to uphold guilt of the accused. In a recent
judgement passed in Anjan Kumar Sarma and Ors. v. State
of Assam AIR 2017 SC 2617 the Hon’ble Supreme Court has
made it clear that:

“18. The circumstance of last seen together cannot by itself
form the basis of holding the accused guilty of the offence.
In Kanhaiya Lal v. State of Rajasthan (2014) 4 SCC 715 :
(AIR 2014 SC (Supp) 788, Paras 12 and 14) this court held
that:

“12. The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was the
accused who committed the crime. There must be
something more establishing connectivity between the
accused and the crime. Mere non-explanation on the part
of the appellant, in our considered opinion, by itself cannot
lead to proof of guilt against the appellant.
……….

15. The theory of last seen-the appellant having gone with
the deceased in the manner noticed hereinbefore, is the
singular piece of circumstantial evidence available against
him. The conviction of the appellant cannot be maintained
merely on suspicion, however strong it may be, or on his
conduct. These facts assume further importance on account
of absence of proof of motive particularly when it is
proved that there was cordial relationship between the
accused and the deceased for a long time. The fact
situation bears great similarity to that in Madho Singh v.
State of Rajasthan [(2010) 15 SCC 588].”

In Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372
this court held that:

“31. Thus the evidence that the appellant had gone to
Sitaram in the evening of 19-7-1985 and had stayed in the
night at the house of deceased Sitaram is very shaky and
inconclusive. Even if it is accepted that they were there it
would at best amount to be the evidence of the appellants
having been seen last together with the deceased. But it is
settled law that the only circumstance of last seen will not
complete the chain of circumstances to record the finding
that it is consistent only with the hypothesis of the guilt of
the accused and, therefore, no conviction on that basis
alone can be founded.”

19. This Court in Bharat v. State of M.P. (2003) 3 SCC 106
: (AIR 2003 SC 1433), held that the failure of the accused
to offer any explanation in his statement under Section
313, Cr.P.C. alone was not sufficient to establish the charge
against the accused. In the facts of the present case, the
High Court committed an error in holding that in the
absence of any satisfactory explanation by the accused the
presumption of guilt of the Accused stood un-rebutted and
thus the Appellants were liable to be convicted.

20. Mr. R. Venkataramani relied upon Deonandan Mishra
v. State of Bihar (1955) 2 SCR 570 at p.582 : (AIR 1955
SC 810 at P. 806) to buttress his submission that the
circumstance of last seen together coupled with lack of any
satisfactory explanation by the accused is a very strong
circumstance on the basis of which the accused can be
convicted. It was held by this Court in the above judgment
as follows:-

“It is true that in a case of circumstantial evidence not only
should the various links in the chain of evidence be clearly
established, but the completed chain must be such as to
rule out a reasonable likelihood of the innocence of the
accused. But in a case like this where the various links as
stated above have been satisfactorily made out and the
circumstances point to the appellant as the probable
assailant, with reasonable definiteness and in proximity to
the deceased as regards time and situation, and he offers no
explanation, which if accepted, though not proved, would
afford a reasonable basis for a conclusion on the entire
case consistent with his innocence, such absence of
explanation or false explanation would itself be an
additional link which completes the chain. We are,
therefore, of the opinion that this is a case which satisfies
the standards requisite for conviction on the basis of
circumstantial evidence.”

21. It is clear from the above that in a case where the other
links have been satisfactorily made out and the
circumstances point to the guilt of the accused, the
circumstance of last seen together and absence of
explanation would provide an additional link which
completes the chain. In the absence of proof of other
circumstances, the only circumstance of last seen together
and absence of satisfactory explanation cannot be made the
basis of conviction. ……”

22. Considering the totality of the facts and evidence, in our
view, the circumstances relied upon by the prosecution are
not established by convincing evidence and they are not
sufficient to hold the accused/appellant guilty of the offence
charged against him. The evidence adduced by the
prosecution falls short of reliability and unsafe to base
conviction. The prosecution has failed to establish the guilt of
the accused respondents beyond reasonable doubt and
certainly benefit of doubt is to be given to the accused.
Therefore, the appeal allowed. The judgement and order
passed by the learned trial Court is set-aside. The appellant is
acquitted from the charge under Section 302 IPC. He be set at
liberty immediately, if not required in any other case.

23. The order of the learned trial Court regarding disposal
of the property is hereby confirmed.

(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE

amit Digitally signed by
Amit Kumar
Date: 2017.11.25
16:23:58 -08’00’

Leave a Comment

Your email address will not be published. Required fields are marked *