Vs. State of Madhya Pradesh  Insc 870 (27 August 2007)
Thakker & D.K. Jain C.K. Thakker, J.
This appeal is filed by the appellant-original accused No. 2 against the
judgment and order of conviction dated July 2, 1991 passed by the Addl.
Judge, Sidhi in Sessions Case No. 78 of 1990 and confirmed by the High Court of
Madhya Pradesh, Jabalpur on July 7, 2003 in Criminal Appeal No. 812 of 1991. By
these orders, both the Courts convicted the appellant for an offence punishable
under Section 302 of Indian Penal Code (IPC for short) and awarded
sentence of imprisonment for life and to pay a fine of Rs.1000/-, in default of
payment, to suffer further rigorous imprisonment for three months.
case of the prosecution was that in the morning of May 6, 1990, Manfer (hereinafter referred to as the deceased)
was in his house. The appellant (original accused No.2) came to the house of
the deceased and asked him that one Sakkhu (original accused No.1) was calling
him. The deceased went with the appellant.
afternoon, the deceased did not come back from the house of the appellant for
taking meal. Buddhsen-PW1, son of the deceased, hence, went to the house of the
appellant for calling his father. There he saw that the appellant had mounted
on the chest of the deceased and Sakkhu had chopped off the neck of the
died on account of assault perpetrated on him and cutting of the neck. Buddhsen
raised alarm and the accused persons fled away from the place. PW2-Faguni, wife
of Manfer came in search of Manfer to the house of the appellant where she
found her husband lying dead.
another son of Manfer also reached there.
persons assembled at the place of occurrence and witnessed dead body of Manfer
lying in the house of the appellant with injury on his neck present. It was
also the case of the prosecution that before committing murder of Manfer,
accused persons had caused Manfer to consume liquor. The motive, according to
the prosecution, was that Manfer had not got married his son Dadua-PW3 with the
daughter of the appellant. The appellant, therefore, had animosity against Manfer
due to which he, alongwith Sakkhu, caused murder of Manfer.
PW1-Buddhsen lodged First Information Report (FIR) (Ex.P-1) of the incident at Sidhi
Police Station. A.K. Dwivedi-PW6, Town Inspector, Kotwali, Sidhi, conducted
investigation, visited the place of occurrence, prepared inquest panchnama of
dead body of Manfer and seized plain as well as bloodstained earth from the place
in the house of the appellant. He also seized two empty bottles of liquor and a
glass. Dead body of Manfer was then sent through PW5-Constable Rajkumar Singh
to hospital, Sidhi. PW7-Dr. H.P. Singh conducted the postmortem examination of
the dead body and gave his report (Ex.P-12). Viscera of Manfer was also
collected and sealed. Dhoti and Baniyan were taken off from the dead body of Manfer
and were sealed and sent to the Police Station. The said articles were
forwarded for chemical examination. Both the accused were then arrested on May 8, 1990. At the behest of Sakkhu, a knife said to have been
used for commission of the crime was recovered. Seized clothes, viscera,
bloodstained and plain earth, bottles and glass and knife were sent for
examination to Forensic Science Laboratory, Sagar. After completion of
investigation, challan was filed against the accused. The Chief Judicial
Magistrate, Sidhi committed the case to the Sessions Court for trial.
accused were charged for an offence punishable under Section 302 read with
Section 34 IPC.
the accused, however, denied their guilt and claimed to be tried. According to
them, they were falsely implicated in the case. The appellant herein denied the
fact that he had taken Manfer to his house. Accused Sakkhu asserted that having
learnt about the incident, he went along with PW1-Buddhsen to lodge a report at
the police station. He stated that he was watchman at jungle and did not allow Buddhsen
and others to pasture their cattle in jungle. Due to that animosity, he was
falsely involved in the case. According to him, he was not present in the house
of the appellant and he had gone to seek his calf and subsequently he learnt
about the death of Manfer. No defence witness was examined by the accused
trial Court, on the basis of evidence adduced by the prosecution, held that Manfer
died homicidal death. The trial Court also held that from the facts and
circumstances of the case, it could not be said that PW1-Buddhsen had seen the
incident and he was an eye witness. Keeping in view omissions on the part of
PW1-Buddhsen about certain facts in his first version and later on in his
substantive evidence before the Court, the trial Court held that it could not
be said that PW1- Buddhsen had witnessed the occurrence. But, considering the
circumstances in their entirety, including the testimony of PW4-Pardesi who was
an independent witness, the trial Court held that it was proved beyond
reasonable doubt and the chain of circumstances was complete to connect the
present appellant (accused No.2)s with the crime. The Court, however, held that
there was no reliable evidence against co-accused Sakkhu (accused No.1). He
was, therefore, ordered to be acquitted.
Being aggrieved by the order of conviction and sentence, the appellant herein
preferred an appeal before the High Court and the High Court also confirmed the
order passed by the trial Court holding that it was proved beyond doubt that
the appellant had committed murder of deceased Manfer.
7. On February 9, 2004, notice was issued by this Court
and thereafter on December
3, 2004, leave was
granted. The matter has now been placed before us for final hearing.
have heard learned counsel for the parties.
Learned counsel for the appellant submitted that both the Courts had committed
an error in recording conviction against the appellant and in imposing sentence
on him. He submitted that when the evidence of PW1-Buddhsen, who claimed himself
to be an eye witness to the incident was not believed, there was no evidence
worth the name on the basis of which the appellant could have been convicted.
It was also submitted that when on appreciation of prosecution evidence,
co-accused-Sakkhu was acquitted, the Courts could not have convicted the
appellant for the offence punishable under Section 302 IPC on the same
counsel urged that it was the case of the appellant from the beginning that he
was falsely charged and since the chain of circumstances was not unbroken and
intact, benefit of doubt ought to have been given to the appellant. It was,
therefore, prayed that the appeal be allowed and the appellant be ordered to be
The learned counsel for the State, on the other hand, supported the order of
conviction and sentence recorded by the trial Court and confirmed by the High
Court. He submitted that evidence of PW1-Buddhsen was not relied upon because
of omission of certain facts in the FIR and in the police statement which he
stated later on in his substantive evidence before the Court. But both the
Courts were right in relying upon circumstantial evidence and in observing the
chain of circumstances to be complete and link unbroken. So far as motive is
concerned, it has come in evidence that since the deceased Manfer and his family
members did not approve the act of the accused of getting his daughter married
to Dadua-son of the deceased, the appellant had animosity against the deceased.
He, therefore, killed Manfer. There is ample evidence to show that accused took
deceased with him at his residence on the day of incident and the said fact is
proved beyond reasonable doubt from the prosecution evidence of Buddhsen-PW1,
Faguni-PW2, Dadua-PW3 and also PW4-Pardesi an independent witness. It was,
therefore, submitted that the appeal deserves to be dismissed.
Having heard learned counsel for the parties, in our opinion, it cannot be said
that by convicting the appellant-accused any illegality is committed either by
the trial Court or by the High Court. It is true that both the Courts have held
that no implicit reliance can be placed on evidence of PW1-Buddhsen-son of the
deceased when he claimed to be an eye witness seeing accused Nos.1 and 2
killing the deceased. That, however, does not mean that circumstantial evidence
also should be discarded. As is clear from the judgments of the Courts below,
certain facts were not stated at the initial stage by PW 1 Buddhsen. The
Courts, therefore, did not accept him to be an eye witness to the incident. In
our opinion, however, both the Courts were right in relying upon circumstantial
evidence. Such circumstances may be summarized thus:
There is ample evidence to show that the deceased was at his residence and it
was the appellant who went to the deceased at the latters residence, told
him that Sakkhu wanted him and took the deceased along with him.
evidence of last seen together i.e. when the deceased was taken by
the appellant at his residence. It was seen by PW1-Buddhsen, PW3- Dadua, both
the sons of the deceased and PW2- Faguni, widow of the deceased.
PW4-Pardesi was an independent witness. He had seen accused taking Manfer at
also heard the shriek of the deceased.
Motive of commission of crime i.e., the appellant wanted his daughter to get
married to Dadua- PW3, son of the deceased but the proposal was not approved by
the deceased, PW2-Faguni, widow of the deceased and other family members.
Medical evidence of Dr. H.P. Singh, PW7 who had conducted post mortem
examination of the deceased. Dr. Singh had proved the injuries on the person of
the deceased which were responsible for the death of the deceased.
most important and clinching circumstance that the dead body of deceased was
lying inside the house of the appellant having serious injuries on his person.
explanation has been offered by the appellant as to how the dead body of
deceased came inside his house.
Seizure of empty bottles of liquor from the house of the appellant and the
presence of liquor in the viscera of the deceased which went to support the
allegation of the prosecution that initially the accused served liquor to the
deceased and thereafter killed him.
If, on the basis of all these facts, both the Courts have come to the
conclusion that it was the appellant who had caused death of Manfer at his
residence, in our opinion, it cannot be said that by taking such view, any
error was committed by them. We see no infirmity in the order passed by the
trial Court and confirmed by the High Court.
For the foregoing reasons, we see no substance in this appeal filed by the
appellant. We hold that the order of conviction and sentence recorded by the
Sessions Court and confirmed by the High Court is legal and proper. The appeal
deserves to be dismissed and is accordingly dismissed.
Before parting with the matter, we may observe that the trial court was not
right in making certain remarks against PW1-Buddhsen, son of the deceased while
not accepting his claim to be an eye witness. The Court, while negativing the
assertion of the witness that he had seen the incident of killing his father by
the accused observed that he had not stated in his police statement that the
appellant sat on the chest of the deceased and accused Sakkhu had cut his
throat with a knife. To that extent, therefore, the Court was not wrong. But
the Court added that the witness had falsely concocted those facts.
In our considered opinion, on the facts and in the circumstances of the case,
the remarks were ill-founded, unnecessary and uncalled for and the Court was
not justified in making them. All those remarks are, therefore, ordered to be
deleted from the record.
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