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M.Cr.C. No.4360/2016
M.Cr.C. No.1364/2016
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
M.Cr.C. No.4360/2016
State of Madhya Pradesh
Vs.
Devendra
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Shri Piyush Dharmadhikari, Government Advocate for the
applicant/State.
None for the respondent.
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and
M.Cr.C. No.1364/2016
Chandan Rajak
Vs.
State of Madhya Pradesh others
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Shri B.J. Chourasiya, Advocate for the petitioner.
Shri Piyush Dharmadhikari, Government Advocate for the
respondent/State.
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Present : Hon’ble Shri Justice S.K.Seth, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
Whether approved for reporting : Yes / No
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Law laid down :-
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Significant Paragraphs : –
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M.Cr.C. No.4360/2016
M.Cr.C. No.1364/2016
JUDGMENT
( 22/08/2017)
Per : Smt. Anjuli Palo, J :-
1. As both these applications have been filed by the applicant
husband of the deceased/State under Section 378 (3) of the Code of
Criminal Procedure, 1973 seeking leave to appeal challenging the
impugned judgment of acquittal dated 19.11.2015 passed by 3 rd
Additional Sessions Judge, Damoh in S.T. No.213/2013, whereby
the respondents have been acquitted from the charge of offence
punishable under Sections 376D, 376A or in the alternate Sections
302, 201 and 404 of the Indian Penal Code, we propose to deal with
the matter analogously and dispose of both the appeals by this
common order.
2. Heard learned counsel for the parties. Perused the record.
3. The prosecution case in brief is that in intervening night of
06.08.2013 and 07.08.2013 under the Police Station-Damoh Dehat
at house no.C-75 near Vijay Nagar, respondents have committed
rape with the prosecutrix and killed her by strangulation and also
stole her gold ornaments, which she was wearing at that time. The
respondents have further tried to wipe out the evidence by hiding
her body. Her dead body was later found at Vijay Nagar. On
intimation of Chandan Rajak (husband of the deceased) Police
Station Damoh Dehat registered Marg No.013 under Section 174 of
the Cr.P.C.
4. During investigation, police arrested accused persons. On
their memorandum recorded under Section 27 of the Evidence Act,
some incriminating articles (ornaments of the deceased) have been
seized from their custody. It was found that after committing rape
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with the prosecutrix, the accused persons strangulated and murdered
her. Thereafter, her body was thrown away near Vijay Nagar
boundary. Hence, offence punishable under Sections 376D, 376A in
alternate Sections 302, 201 and 404 of the Indian Penal Code was
registered against them. Charge-sheet was filed before the
competent Court.
5. Learned trial Court framed charges under Sections 376D, 376A in
alternate Sections 302, 201 and 404 of the Indian Penal Code against
the respondents. The accused persons abjured their guilt; therefore, they
were put to trial. They pleaded that they are innocent and falsely
implicated by the police under pressure.
6. Learned trial Court found that the prosecution failed to
establish the circumstantial evidence against the
respondents/accused. After considering the testimony of prosecution
witnesses, the learned trial Court acquitted the accused/respondent
from the charges levelled against them/respondents.
7. The question arises for consideration before us whether the
findings of learned trial Court are illegal or perverse ?
8. In the circumstantial evidence, for “the last seen together
theory” burden lies on the prosecution to establish the chain of
circumstances so as to prove the guilt of accused; such proved
circumstances should form complete chain without any break so as
to unerringly point towards guilt of the accused and there should
not be any hypothesis which is inconsistent with the guilt of the
accused. Keeping this broad principle in mind, let us now go into
further circumstances projected by the prosecution in this case.
9. In present case, the deceased was not seen in the house of the
respondents nor together with the respondents before the incident
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by any witness. It would be extremely essential for the prosecution
to link accused persons with the crime. In this regard, we do not
find any fact against the accused persons in the deposition of
Chandan Rajak (PW-2), husband of the deceased. The statement of
Mamta (PW-1) has been contradictory with the testimony of
Chandan Rajak (PW-2).
10. Chandan Rajak (PW-2) stated that on the date of incident at
about 10:00 a.m. his wife/deceased went to Yogendra Pandey’s
house at Vijay Nagar for cooking food. At about 11:00 p.m. when he
returned home, he did not find his wife at home. Then he asked
Mamta Rajak (PW-1) who told him that she saw the deceased with
respondent/accused Rahul Bhadoriya at Vijay Nagar. Mamta (PW-1)
denied the aforesaid fact in her testimony; therefore, Mamta (PW-1)
and Chandan Rajak (PW-2) have not stated any material fact which
shows the involvement of the respondents/accused persons in the
crime with regard to “the last seen together theory”.
11. Yogesh Nath (PW-10), Deputy Project Manager stated that he
was working in A.R.S.S. Construction Company at Damoh-
Heerapur Road. He resided in House No.C-59. Respondents/accused
persons namely Mahendra and Devendra used to cook food for him
whereas respondent no.3 Rahul Singh was his H.R. who resided at
Surekha Colony. He denied that he knew to the deceased. Hence,
statement of Yogesh Nath (PW-10) has also not supported the
prosecution story.
12. Lakshman Anuragi (PW-14), T.I. deposed that the respondents
were suspected accused, they were arrested by him. Before Panch
witnesses Devendra, Vikram and Sunil have given information
under Section 27 of the Evidence Act that with the help of other
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respondents body of the deceased was put in the sack and kept in
Bolero vehicle, bearing Registration No.HR-70-A-1763. Thereafter,
the dead body was thrown near the boundary wall between two trees
logs and two pairs of silver bichhiya of the deceased were kept in
the kitchen almirah. Police seized aforesaid articles by seizure
memo (Ex.P/24). Similarly, as per the memorandum (Ex.P/21) of
the accused Mahendra, police seized one golden nose-pin from his
pant pocket, which was given to him by accused Rahul Singh. The
said Bolero vehicle was also seized from Vijay Nagar wherein no
incriminating evidence has been found by the police.
13. Evidence of Lakshman Anuragi (PW-14) has not been
supported by the Panch witnesses Vikram and Sunil. Further, no
ornament has been seized by the police. According to the
memorandum of respondent/accused Rahul Dangi, one golden
Mangalsutra, one pair bentex artificial golden Jhumki, one pair
silver Payal and silver Kardhani were seized by the police. Panch
witnesses Sunil and Vikram have not supported the prosecution
story. Lakshman Anuragi (PW-14), Investigating Officer, has
admitted that in the memorandum (Ex.P/12) of accused Rahul
Dangi, it was not recorded that from which house, which almirah,
which room, aforesaid articles were seized by the police. In
paragraph 43 of his statement, he has admitted that husband of the
deceased Chandan Rajak (PW/2) and other witnesses have not
disclosed about the ornaments of the deceased to him. If it is
presumed that the seized articles belonged to the deceased and were
seized from the possession of the respondents only, that
circumstance itself is not sufficient to link the respondents with the
crime.
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14. Dr. Manish Patel (PW/3) conducted post-mortem of the body
of the deceased. He found that the clothes of the deceased were
covered in blood stains. There was swelling on her cheeks and lips
as well as on both eye ball. The Doctor found following contusions
over the upper part of the chest and back of the deceased :-
i. Contusion on mid bone of neck 5 cm, left at the
right side 6 cm, at the front side 5 cm;
ii Contusion over right arm at about 6×4 cm;
iii. Contusion 7×3 cm over left arm;
iv. Contusion 5×3 cm over left arm;
v. Contusion 6×3 cm over right arm;
vi. Contusion over right thigh 7×3 cm;
vii. Contusion over left thigh 8×3 cm;
viii. Contusion over right leg 8×4 cm;
ix. Contusion over left leg 9×5 cm;
x. Contusion at abdomen 5×3 cm
In internal examinations, Dr. Manish Patel has found swelling
on vulva, vaginal tear at left lateral wall. The opinion of the Doctor
proved that the deceased was died due to strangulation and before
death she was sexually assaulted.
15. The testimony of the Doctor clearly established that the
deceased was intentionally murdered after committing rape by more
than one person. In this regard, DNA test of the respondents were
conducted at District Hospital, Damoh and samples were seized by
the police as stated by Ninkush Kumar (PW-6), Garjan Singh (PW-
7) and A.K. Patel (PW-12).
16. Learned trial Court found, no incriminating evidence from the
DNA test against the respondents/accused. Learned trial Court
properly appreciated all the evidence and found so many important
defects in the investigation which creates reasonable doubts in
favour of the respondents. In criminal trial, the basic principle is
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that normally it is believed that accused is innocent. The
circumstances from which an inference as to the guilt of the accused is
drawn have to be proved beyond reasonable doubt and have to be shown to
be closely connected with the principal fact sought to be inferred from
those circumstances. The cumulative effect of the circumstances must
be such as to negative the innocence of the accused and bring the
offences home beyond any reasonable doubt. If the evidence relied on
is reasonably capable of two inferences, the one in favour of the accused
must be accepted. Thus, if the trial Court takes view that the accused
persons deserve to be acquitted on the basis of evidence on record,
the same cannot be reversed unless and until it is found that the
same vitiates on account of some gross perversity and erroneous
evidence on record. In other words, it is settled principle of law that
if two views are plausible, the view which goes in favour of the
acquittal has to be adopted.
17. In case of Dhal Singh Dewangan Vs. State of Chhattisgarh 2017
CrLJ 1143 (SC), the Supreme Court has held that :-
“In cases based on circumstantial evidence, if
circumstances on record not framing complete chain so as
to exclude every possible hypothesis except the guilt of
the accused held entitle to acquittal.”
18. After reappreciate and review the whole prosecution evidence on
which the learned trial Court passed the findings of acquittal against the
respondents, we find that the findings of learned trial Court are based on
proper appreciation evidence on record. In case of Ramesh and others Vs.
State of Haryana 2017 Cr.L.J. 352 (SC), it was observed by the Supreme
Court that :-
“the scope of interference in an appeal against acquittal is
undoubtedly narrower than the scope of appeal against
conviction. Normally judgment of acquittal of the trial
court is attached a definite value which is not to be
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M.Cr.C. No.1364/2016ignored by the High Court. In other words, presumption
of innocence in favour of an accused gets further fortified
or reinforced by an order of acquittal. At the same time,
while exercising its appellate power, the High Court is
empowered to reappreciate, review and reconsider the
evidence before it. However, this exercise is to be
undertaken in order to come to an independent conclusion
and unless there are substantial and compelling reasons or
very strong reasons to differ from the findings of acquittal
recorded by the trial court, the High Court, as an appellate
court in an appeal against the acquittal, is not supposed to
substitute its findings in case the findings recorded by the
trial court are equally plausible.”
19. Further that it is settled view and laid down in several cases such as
Yogesh Singh Vs. Mahabeer Singh and others [2017 Cr.L.J. 291 (SC)],
Harbeer Singh V.s Sheeshpal others with State of Rajasthan Vs.
Sheeshpal others [2017 Cr.L.J. 169 (SC)] and Madathil Narayanan
and others Vs. State of Kerala and another [2017 Cr.L.J. 732 (SC)] and
Mahavir Singh Vs. State of M.P. [2017 Cr.L.J. 749(SC)], it was held that
if two views are possible, which goes in favour of acquittal has to be
adopted.
20. In the light of above principles laid down by the Apex Court and on
the above discussion, we find that the findings of learned trial Court are
not perverse or illegal. The prosecution failed to prove all charges against
the respondent beyond the reasonable doubt. In the impugned judgment no
interference is warranted. Hence, these applications for leave to appeal
against the acquittal of accused/respondent at the stage of admission are
hereby dismissed.
21. Record of the trial Court be sent back along with the copy of this
order.
(S.K. Seth) (Smt. Anjuli Palo)
Judge Judge
RJ
