Ganpat vs State Of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 2.9.1995 passed by the Sessions Judge, Sehore in Sessions Trial No.189/1994,

whereby appellant held guilty for commission of offence punishable under Section 302 of IPC and awarded sentence of life imprisonment with

fine of Rs.2000/-Â with default stipulation.

Prosecution story in brief is that before two years of the incident Kishan father of appellant was killed by Kunjilal. On this account a threat was

given to Balaprasad and deceased Kunjilal had threatened the grand son of father of accused when he was grazing Soybean and at that time Kishan

had called the father of Kunjilal that he would kill the deceased. At around 9 o’clock  Chowkidar of the village witnessed that on one

bullock-cart son of Jagdish was sitting and he enquired from the son that from where bullock-cart is coming then son of the Jagdish replied that

bullock-cart had come from Garhi. In the second bullock-cart, appellant accused was not there. He had gone at the site of the field. The Chowkidar

had heard some sound and thereafter he enquired who is there, then appellant came there and told me that he is there. Thereafter he ran away. The

Chowkidar found  dead body of the deceased, thereafter he informed the said incident to the Sarpanch of the village and lodged a report. Police

conducted investigation and filed charge sheet. The trial Court relied on the evidence of Nannulal (PW1) and other evidence and convicted the

appellant for commission of offence punishable under Section 302 of IPC and awarded sentence of life imprisonment and fine amount of Rs.2000/-, in

default of payment of fine amount further sentence of 6 months.

Learned counsel for the appellant has submitted that the conviction of the appellant is based on circumstantial evidence. The evidence is not

sufficient to prove the offence against the appellant beyond reasonable doubt. He has further submitted that evidence of Nannulal (PW1) is not

reliable. After perusal of the medical evidence, injuries could not be caused by the article which was seized from the possession of the appellant. In

support of his contentions, learned counsel for the appellant has relied on the following judgments :-

“1. Rajkumar Singh @ Raju @ Batya Vs. State of Rajasthan [AIR 2013 SC 3150].

State of Madhya Pradesh Vs. Nisar [(2007) 5 SCC 658].â€​

Contrary to this, learned counsel appearing on behalf of the State has submitted that there is sufficient evidence to prove guilt of the appellant

beyond reasonable doubt. The trial Court has appreciated the evidence and held appellant guilty. The judgment passed by the trial Court is in

accordance with law. The appeal is liable to be dismissed.

Nannulal (PW1) is a star witness. He was Chowkidar of the village. He also lodged the FIR Ex.P-1. He deposed that in the night of Diwali, I was

going to my field on a tractor after taking meal. I noticed two bullock-carts on the way. One was empty and in another bullock cart a child aged 8-10

years was sitting. He was Jaipal son of Jagdish. He told me that his uncle had gone to the site of field and he is coming after loading pipes. When I

reached at the field of Soybean,

I had heard the sound of fatafat. Somebody was beating a person then I asked who is there. One person came to me and he asked me, who are you ?

I told him that I am village Chowkidar, Nannulal. The person was keeping a Khalla on his shoulder, he was Ganpat.

Thereafter he ran away. I noticed that deceased was lying in the field of Kunjilal. Thereafter, I went to Navi Khan and Vilayat Khan and told them

about the incident. We went to Sarpanch and told the incident to him thereafter he came at the spot and noticed that deceased was died. Thereafter

I went to Police Station, Ahmedpur and lodged the report which is Ex.P-1 and signed the same. Police prepared the spot map Ex.P-2 and signed

the same. The police also seized the blood stained clothes vide seizure memo Ex.P-3 and I signed the same. He identified the accused-appellant in

the Court. In his cross-examination, questions were asked about the enmity of the deceased from other persons. He denied the questions.

Nirbhay Singh (PW2) deposed that my brother Kamal and Sarpanch came to my house at around 10 o’clock. They had taken me to the field of

Karamat and told me that appellant had killed the deceased.

Vilayat Khan (PW4) deposed that I was at my Khaliyan and Nannulal (PW1) came to me and told me that he had heard the sound of fatafat and

shouted who is there. Thereafter Ganpat came there and he went to bullock-cart and I had seen that the deceased was lying there. Thereafter we

went to the place and noticed that deceased was lying there. Thereafter Asif Miya and Chowkidar were went to the police station to lodge the report.

Police had seized a pant from accused-Ganpat vide seizure memo Ex.P-6. There were blood stains on the pant.

Navi Khan (PW6) deposed that when I was sitting in taparia Nannulal (PW1) told me the incident as narrated by him  in his evidence and he

had identified the appellant who was Ganpat at the place of incident. Thereafter he went to place of another person.

Kamal Singh (PW7) also deposed that Nannulal (PW1) came to my place and I alongwith other persons went to the place where the dead body

was lying.

Jagannath (PW8) deposed that he has also went to the place of incident and police had seized plain earth and red earth on the spot vide seizure

memo Ex.P-9. One bag and torch were seized vide seizure memo Ex.P-10. Police enquired from the accused and thereafter a shirt and lakdi was

seized vide seizure memo Ex.P-11. He also admitted that memorandum given by the accused before him. Police have also seized one wooden stick

vide seizure memo Ex.P-12 and shirt vide seizure memo Ex.P-13 and full-pant vide seizure memo Ex.P-6 and I signed the documents. In para 16 of

his crossexamination he deposed that first one danda seized by police was given by the accused and thereafter another danda was given by the

accused to the police.

Amar Singh (PW10) deposed that one month before the incident Balaprasad father of Kunjilal had told Kishan that because his cattle were

grazing Soybean of Kunjilal and so Kunjilal had threatened the grand-son of Kishan and he said that some time his son would be Kunjilal.

Balaprasad (PW5) is the father of the deceased. He deposed that Kishan had threatened me that I should console my son because he had

thrashed the grand son Kishan failing which his son would kill the deceased.

Charan Singh (PW9) Investigating Officer deposed that on 21.10.1994, I was posted as Sub-Inspector and Nannulal lodged a report Ex.P1. He

signed on the report. Thereafter I reached on the spot and noticed that a dead body was lying in the field and noticed injuries on the head of the

deceased. I prepared the panchnama and seized plain earth and red earth vide seizure memo    Ex.P-9. A white bag and three cutouts

were seized vide seizure memo Ex.P10. Spot map was prepared, it is Ex.P-2 and I signed the same. On 21.10.1994 the appellant was arrested.

On his memorandum, a blood stained Khalla was seized vide seizure memo Ex.P-12. Thereafter on the descriptions of accused a tericot shirt

was seized vide seizure memo Ex.-P13. There were blood stains on Khalla and shirt. Similarly a pant was also seized vide seizure memo Ex.P-14. A

full-pant was also seized vide seizure memo Ex.P-6. The articles were sent to the FSL.FIR (Ex.P-1) was lodged within four hours of the incident by

Nannulal (PW1). In the FIR it is mentioned that Nannulal (PW1)Â had heard a sound like beating and he said who is there. Thereafter appellant

came there and he asked from Nannulal (PW1) who is he and Nannulal (PW1) told him that I am Chowkidar of the village. Thereafter he ran away

from the spot.

The Apex Court in the case of Satish Nirankari Vs. State of Rajasthan [(2017) 8 SCC 497] has held as under in regard to circumstantial evidence

:-

It is now well established, by catena of judgements of this Court, that circumstantial evidence of the following character needs to be fully

established:

(i) Circumstances should be fully proved.

(ii) Circumstances should be conclusive in nature. Crl.A.No. 1074 of 2007

(iii) All the facts established should be consistent only withthe hypothesis of guilt.

(iv) The circumstances should, to a moral certainty, excludethe possibility of guilt of any person other than the accused ( see State vs. Dr. Ravindra);

Chandrakant vs. State of Gujarat; . It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable

circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case

of circumstantial evidence the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible

with the innocence of the accused or the guilt of any other person.

Following tests laid down in Padala Veera Reddy vs.State of A.PÂ also need to be kept in mind:

“10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendencyunerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human

probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain convictionmust be complete and incapable of explanation of any other hypothesis than that of the

guilt of the accused and such evidence should not only e consistent with the guilt of the accused but should be inconsistent with his innocence.â€​

Sir Alfred Wills in his book Wills’ Circumstantial Evidence(Chapter VI) lays down the following rules specially to be observed in the case of

circumstantial evidence:

“(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum

probandum;

(2) the burden of proof is always on the party who asserts theexistence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence, thebest evidence must be adduced with the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatoryfacts must be incompatible with the innocence of the accused and incapable of explanation,

upon any other reasonable hypothesis than that of his guilt; and (5) if there by any reasonable doubt of the guilt of the accused, he is entitled as of right

to be acquitted.â€​

Learned counsel placed reliance on the judgment of the Apex Court in the case of Rajkumar Singh @ Raju @Â Batya Vs. State of Rajasthan

[AIR 2013 SC 3150]. In the aforesaid case the Apex Court has held as under in regard to circumstantial evidence :-

“17. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be’

proved and `will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for

the reason, that the mental distance between `may be’ and `must be’ is quite large and divides vague conjectures from sure conclusions. In a

criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may

be’ true and `must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an

accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may

be’ true and `must be’ true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the

touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality

and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a

case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely

probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State ofM.P., AIR

1952 SC 343; Shivaji Sahabrao Bobade & Anr. v. State of Mahrashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda v. State of Maharashtra, AIR

1984 SC 1622; Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702; Ashish Batham v. State of M.P., AIR 2002 SC 3206; Narendra Singh &

Anr. v. State of M.P., AIR 2004 SC 3249; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P.,

AIR 2012 SC 1979)â€​.

It is a fact that suspicion however grave cannot take place of proof and the facts alleged clearly prove the facts about the act of the accused

beyond reasonable doubt.

In the present case Nannulal (PW1) is an independent witness. He specifically deposed that he had heard the sound like beating and when he

asked, who is there. The appellant came and he asked from Nannulal (PW1) who is he. He replied that he is Chowkidar of the village. He

specifically deposed that person was the appellant.

Village Chowkidar narrated the aforesaid facts to the other witnesses. They deposed that Nannulal (PW1) told them about the act of the appellant,

thereafter a report was lodged at the police station. Apart from this, from the possession of the appellant a Khalla was seized. A full-pant, T shirtÂ

and other articles were seized. As FSL report Ex.P-17 blood stains were found on soil Article-A, Wooden Stick Article-G and Full-pant Article-H.

The accused was bearing the aforesaid clothes. Although there is no mention about the blood group on the articles. However, in view of the evidence

of Nannulal (PW1) and the FIR lodged by Nannulal (PW1), in our opinion only nonmention of the blood group would not render the evidence

unreliable.

Hence the judgment of State of Madhya Pradesh Vs. Nisar [(2007) 5 SCC 658] cited by the learned counsel for the appellant is distinguishable on

facts. The appellant has not given any explanation about the blood found on his clothes. There was a motive on the part of the appellant. Dr. A.A.

Kureshi (PW3) performed the postmortem of the deceased. He deposed that he noticed following injuries on the person of the deceased :-

“1. One lacerated wound back side of skull occipital area 10x3cm. Brain matter was coming out. There was a fracture of occipital bone.

One depressed fracture of left fronto parietal region.

There was a fracture of maxillary bone.â€​

There was sub-dural haemorrhage frontal lobe of brain, parietal and occipital lob and compression. Injuries were antemortem in nature and they were

caused by hard and blunt object. The evidence of doctor corroborates the ocular evidence.

Learned counsel for the appellant has further submitted that the injuries could be caused by accident. There is no evidence that the deceased met

with any accident. Neither the aforesaid question was asked by the defence with the prosecution witnesses. The appellant was armed with wooden

stick (khalla). He had inflicted number of injuries on the person of the deceased, who was unarmed. Hence, the intention and motive of the appellant

was to kill the deceased. In such circumstances, the trial Court has rightly held the appellant guilty for commission of offence of murder and awarded

proper sentence. We do not find any merit in this appeal. It is hereby dismissed. The appellant is on bail. His bail bonds are cancelled. He is directed

to surrender to the trial Court immediately to undergo the jail sentence.

A copy of the judgment be sent to the trial Court for necessary compliance of this order.