of Madhya Pradesh Vs. Nisar  Insc 681 (4 June 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order of a Division Bench of the
Madhya Pradesh High Court, setting aside the judgment of conviction recorded by
the Trial Court by a learned Additional Sessions Judge in ST. No.44 of 1988 and
directed acquittal of the respondent. Accused faced trial for offence under
Section 302 of Indian Penal Code, 1860 (in short the 'Code').
2. Background facts in a nutshell are as follows:
The case, as presented at the trial was that Kandhai and Chherkoo did not
return home in the evening. A he-goat of Sitaram was also missing. The search
party located the he- goat in village Karhitola in the house of Barelal (PW-4).
Accused Nisar had sought shelter for the night at Barelal's house and had
brought the he-goat with him. On being questioned, the accused admitted having
killed Kandhai because the latter had abused him when he was taking away the
he-goat. He also confessed the murder of Chherkoo whose body was recovered at
3. The first information report (Ex.P-l) was lodged by Bhaiyalal next
morning, after recovery of the body of Kandhai. The body of Chherkoo was
recovered during the course of the day on the information given by accused
Nisar during investigation. The usual investigation followed, and in due course
the accused was tried for the offences as already described above. The trial
resulted in conviction on all heads of charge.
4. Accused challenged the conviction before the High Court.
5. Before the High Court, it was urged that the conviction was based on
surmises and conjectures. The so called extra judicial confession has no
foundation. The accused, who was a casual passer-by and taken shelter in the
house of Barelal in the night has been made a scapegoat for the blind murder of
the two graziers.
Learned counsel for the State submitted that the Trial Court has analysed
the evidence and after drawing proper inference, has found the accused guilty.
6. The High Court found that there was no eye-witness to the incident. Two
factors which weighed with the Trial Court were the so-called recovery of an
axe and the extra judicial confession. It was noticed by the High Court that
there was no reference to the extra judicial confession in the FIR and though
blood was stated to have been found on the axe recovered, the blood grouping
was not done. Accordingly, trial Court's judgment was set aside and acquittal
7. In support of the appeal, learned counsel for the State submitted that
the extra judicial confession had been rightly relied upon by the Trial Court
and the High Court should not have discarded the evidentiary value of the extra
judicial confession. Similarly, the axe was recovered at the instance of the
accused and, therefore, the High Court's conclusions are erroneous.
8. It is to be noted that the First Information Report was lodged much after
the so-called extra judicial confession was made. Evidence on record shows that
the body of Kandhai was lying exposed in the jungle and his lathi and Khomari
were lying close-by. In the FIR (Exh P-1), there was no reference to the
so-called confession by the accused. Informant Bhaiyalal's explanation that he
may have forgotten to disclose this fact to the police while lodging the FIR,
is totally improbable and wholly unacceptable. If in fact there was any
confession as claimed that would have been the first thing to be mentioned and
not that there was suspicion of the accused being the assailant. Raghvendra
Singh Baghel, PW-12 had admitted that the body of Chherkoo was lying about 100
paces from the dead body of Kandhai. The High Court rightly noticed that no
disclosure was necessary for locating the dead body. The axe and the khomari
were also lying close-by and even a casual search would have revealed the dead
bodies and the articles.
The Chemical Examiner in his report Ex.P-37 had found that the axe was
stained with human blood. Curiously, the blood group was not ascertained. It
was, therefore, not possible to conclude that the axe was used for killing the
two deceased persons.
9. Above being the nature of evidence of prosecution witnesses, the High
Court was perfectly justified in finding the prosecution version vulnerable,
and the evidence scanty to fasten the guilt on the accused in a case where the
prosecution version rests on circumstantial evidence.
10. There is no scope for interference in this appeal which is, accordingly,