Gopal Singh and Another vs State of Madhya Pradesh

U.C. Maheshwari, J.—The appellants/accused have filed this appeal u/s 374 of the Criminal Procedure Code being aggrieved by the judgment dated 16th November, 1999 passed by Second Additional Sessions Judge, Guna in Sessions Trial No. 166/1998 convicting and sentencing to each of the appellants for the offence of Section 302, 201 and 341 of Indian Penal Code for Life Imprisonment with fine of Rs. 2,000/- in default of depositing the same for further 6 months Rigorous Imprisonment in first count, for Rigorous Imprisonment of two years with fine of Rs. 500/- in default of depositing the same for further 2 months Rigorous Imprisonment in second count and with fine of Rs. 250/- in default of depositing the same for further 15 days Simple Imprisonment on last count. The facts giving rise to this appeal in short are that on dated 12/03/1998, deceased Chhotelal Yadav went to the barber shop of Emrat Nai at village Dharnawada, where he was subjected to beating by the appellants Gopal Singh and Govind Singh and he was also restrained to go police station to lodged the report and to subsidies such dispute they administered him the liquor and thereafter by carrying beating, various injuries were caused on his person and thereafter, he was thrown on railway track and thereby they have committed the murder of Chhotelal and tried to conceal the evidence of the same. According to further case of the prosecution, on receiving some information from Assistant Station Master of Railway Station, Dharnawada-Suresh Chandra (PW/5) posted at railway station, Dharnawada regarding unnatural death of some unknown person, an inquest report bearing No. 4/98 was registered by police station GRP, Guna. In its enquiry, the spot map (Ex. P/8) was prepared and after preparing the inquest memorandum, the pieces of dead body collected from the railway track was sent to the hospital where its postmortem was carried out. In further enquiry of the inquest report, it was revealed that lastly, the deceased was seen in the company of the appellants at the shop of aforesaid Emrat Nai, where he was beaten by them and when he was running away from such place, he was also caught hold by the appellants. On establishing such prima facie circumstances, the First Information Report (Ex. P/19) for the offence of Section 341, 323, 302, 201 read with Section 34 of Indian Penal Code was registered against the appellants, various requisite Panchnamas were prepared, interrogatory statements of witnesses were recorded and on completion of the investigation, both the appellants were charge-sheeted for the above mentioned offences.

After committal of the case to the Sessions Court, on appreciation of the charge-sheet, the charges of Section 341, 302 and 201 of Indian Penal Code were framed against the appellants. They absurd their guilty, on which, the trial was held and on appreciation of the evidence, both the appellants were held guilty for the aforesaid offences and they have been punished as stated above. Being dissatisfied by the judgment of the trial Court, the appellants have come to this court with this appeal.

Shri Kulshrestha, learned counsel for the appellants after taking us through the record of the trial Court, by referring the deposition of Abdul Naim (PW/12) argued that according to the case of the prosecution, he was the only witness who lastly seen the deceased all alone in the night when he was jumping/dancing on the railway track and subsequent to passing some train, he was found dead. In continuation of referring the deposition, he said that although the deceased was not known to this witness, but this witness has categorically stated that after passing two good trains, he found such person, who was jumping/dancing at the side of the railway track, dead. He immediately informed to the Assistant Station Master and on such information, two other persons came from the railway station then they went near to the railway track where the concerning person was already cut into pieces by the running train. In such premises, he submitted that in view of such statement, the story put forth by the prosecution that deceased was seen lastly in company of the appellants could not be believed because this witness has not stated that the aforesaid person who died later on by running train was brought at the side of the track by the appellants or any other person. So mere on the deposition of this witness, the story of lastly seen of the deceased with appellants is washed away. But without considering this aspect, the trial Court has drawn the inference against the appellants for holding conviction. In continuation he said that on carrying out the postmortem of the dead body, the mode of the death of the deceased person was not found to be homicidal death. Even in the postmortem report, the doctor has not found the mode of death whether it was accidental, homicidal or suicidal. According to opinion of the doctor, the deceased died due to shock and the hemorrhage due to the alleged injuries. By referring the deposition of the doctor, he said that the doctor has not ruled out the possibility that the alleged injuries could have been sustained by the deceased due to running over of the train on him. By referring the deposition of other witnesses, he said that if the deposition of such witnesses is accepted in its entirety, even then no inference can be drawn against any of the appellants. In such premises, he prayed to extend the acquittal to the appellants by setting aside the impugned judgment by allowing this appeal.

On the other hand, Shri Pandey, learned Public Prosecutor responding the aforesaid arguments by justifying the evidence and the approach of the trial Court, holding conviction and sentence of the appellants, argued that the same being based on proper appreciation of the available evidence is in conformity with law, which does not require any interference for extending the acquittal to the appellants. In continuation, he said that in any case, there is evidence adduced by the prosecution that lastly some quarrel took place between deceased and the appellants in front of the shop of Emrat Nai where the deceased was subjected to beating and thereafter when he was running away, again he was caught hold and beaten by the appellants. So in such premises, only one inference can be drawn that the deceased was murdered by the appellants and by no any other person and prayed for dismissal of this appeal.

Having heard the counsel at length, keeping in view the arguments advanced by the parties, we have carefully gone through the record as well as the impugned judgment.

It is undisputed fact in the matter that the dead body of the deceased in pieces was found near the railway track and prior to that, that person was seen by the aforesaid railway employee, who was posted there namely Abdul Naim (PW/12) that before passing the train, that person was alive and was jumping/dancing at the railway track and subsequent to that, he was found dead. On sending the dead body of the deceased Chhotelal to the hospital, the postmortem was carried out and postmortem report was prepared and according to postmortem report (Ex. P/10), the cause of the death of the deceased was hemorrhage and shock due to excessive anti mortem injuries as described in the postmortem report. It is apparent from such postmortem report that mode of death was either homicidal or suicidal or accidental has not been stated by the doctor. Even on recording the deposition of such doctor, N.K. Sharma (PW/10) who prepared such report, he has not stated anything regarding mode of the death of Chhotelal either it was homicidal, accidental or suicidal. In the matter of murder of a human being, the prosecution is duty bound to prove that the death of the concerning person was the homicidal death. So in the lack of such material evidence, medical opinion in that regard, the death of Chhotelal could not held to be the homicidal death. On the contrary, in the cross-examination of such doctor, he categorically stated that the alleged injuries found on the dead body, as stated in the postmortem report (Ex. P/10), could have been sustained by running over the train on the deceased. So in such premises also, it could not be said that alleged death of Chhotelal was the homicidal death. So in the lack of material ingredients of the murder, the appellants deserve to be extended the benefit of the same.

Apart the aforesaid, as per the case of the prosecution, lastly deceased was seen in front of the shop of Emrat Nai (PW/1). On recording his deposition, he has stated that deceased Chhotelal came to his shop before one year and some quarrel took place between the appellants and him and thereafter, they went away from his shop. So this witness has not stated that any beating of the deceased was carried out by the appellants by which he sustained any of the injury mentioned by the doctor in the postmortem report. The near relatives of the deceased PW/2-Dhapabai (Sister-in-law/Bhabhi) and PW/3-Hamirsingh (brother) are not the eye-witness and they have not stated any incriminating thing, which were seen by them, against the appellants. Although on perusing their deposition, they appears to be the witness who received the information of such incident later on from some other persons.

As per the prosecution, the other witness, Kamal Singh (PW/4) was present at the shop of Emrat Nai, who on recording the deposition has not stated any incriminating thing against any of the appellants. Assistant Station Master-Suresh Chandra (PW/5) has stated only about the information which was received by him from the aforesaid witness Abdul Naim (PW/12). Kishan Singh (PW/6) is not a witness to the incident of the railway track. According to his deposition, he said that a day prior to the death of deceased Chhotelal, he went to the shop of Emrat Nai for his shaving, where Chhotelal and Kamal Singh were eating the Tobacco. At the same time, appellant Gopal came there and given a slap to Chhotelal. He also identified the Gopal. He further said that after going from such place, Gopal came again with some Fanta (Stick) and caused an injury on the left hand of Chhotelal, on which he saved by him. Except this, he has not stated any more thing in his deposition.

The witnesses Kamarlal (PW/7) and Mintu (PW/8) being worker of the railway department have stated that they were sent to the place of the track by their Assistant Station Master to keep watch to the place where dead body was lying in different parts. So in such premises, they are not the eye-witnesses of the incident.

Hanumant Singh (PW/9) has also not supported the case of the prosecution. In his deposition, he said that when he was going towards the shop of barber for his shaving, at that time he saw Chhotelal coming from the railway station side under the influence of liquor. He also stated that Chhotelal asked the Gopal to give him money to purchase the liquor, on which, Gopal told him that he may take tea but he will not give him money for liquor on which Chhotelal given some abuses to him. He intervened in the matter and subside the dispute. Thereafter, Gopal was setting there while Chhotelal went away from such place. He specifically stated that in his presence no beating has taken place between Gopal and the deceased.

In the aforesaid premises, it is apparent that except, Abdul Naim (PW/12), no one is the witness who lastly seen the deceased. Although, in the late night when the deceased was dancing/jumping near the railway track, this witness could not identify him. But it is apparent from his deposition that the person who was dancing/jumping was not brought by any other person at the railway track and in continuation he stated that after passing some train from the track, he saw that person dead in different pieces then he intimated the Assistant Station Master and then Assistant Station Master send the aforesaid two persons Kamarlal and Mintu, to keep watch on the place of incident in the night. So in such premises, the theory put forth by the prosecution that the deceased was lastly seen with Gopal or the other appellant when the alleged quarrel took place in front of the barber shop is washed away because as per the aforesaid witness of the prosecution, lastly the deceased was seen all alone by Abdul Naim at the side of the railway track. So on the basis of theory of the last seen, the impugned conviction as imposed by the trial Court against the appellants, is not sustainable and same deserves to be set aside.

Coming to the another argument of the State counsel that the clothes and other articles like iron rod at the instance of the appellants, as stated by them in their memorandum recorded u/s 27 of the Evidence Act, were recovered from the spot shown by them near the railway track, and the same have been proved. So in such circumstance, impugned judgment of conviction could not be interfered is concerned, we are of the considered view that mere on the basis of such memorandum and the recovery panchnamas, the appellants could not be convicted for the alleged offence, especially, when the sole material witness of the prosecution Abdul Naim (PW/12) has not proved the story as put forth by the prosecution. For the sake of arguments, if such memorandum and the seizure memos of the above mentioned articles are taken into consideration even then the alleged recovery being made from the open place where the possibility of various persons coming and going, could not be ruled out, the same could not be a foundation to hold the conviction against the appellants. So such arguments of the State counsel has not appealed us, consequently same is rejected.

In any case, for the sake of the arguments, if it is deemed that a day before from the date of the recovery of the death body of the Chhotelal, he came in front of the shop of Emrat Nai where some quarrel took place between the appellants and him, even then in view of the aforesaid discussion based on the depositions of the prosecution witnesses, the Chhotelal had gone some other way and he remained with the appellants at subsequent stage. Therefore, mere on account of death of Chhotelal on the same night, the appellants could not be held to be responsible for his death unless some incriminating or material evidence is available against them by the prosecution, which is absolutely absent in the matter as discussed above. In view of the aforesaid discussion, the impugned judgment of conviction and sentence of the appellants under the above mentioned offences being perverse, illegal and contrary to evidence available on record, deserves to be set aside. Therefore, by allowing this appeal, the impugned judgment of conviction and imposing sentence against the appellants is set aside and pursuant to it, appellants are acquitted from all the aforesaid charges. The amount of fine imposed by the trial Court, if deposited by the appellants then after proper verification it be refunded to them. The bail bonds of the appellants are hereby discharges.