Pavan vs State of Madhya Pradesh

Appellant/accused has preferred this appeal challenging the judgment dated 17.11.1994, passed by the Ist Additional Sessions Judge, Shahdol,

in Session Trial No. 187/1992, whereby the appellant has been convicted for offence punishable under Section 302 of the Indian Penal Code and

sentenced to undergo life imprisonment and fine of Rs. 5000/- with default stipulation.

The prosecution story in brief goes to show that at the time of incident the appellant and Madhuram (PW-1) father of the deceased both were

working in forest department. They resided in the house opposite to each other. They had old enmity with each other. In the year 1989, an istigasa

(complaint) was filed against both of them under Section 107/16 of Cr.P.C. by the police station, Betul. It was alleged that the appellant tried to

outrage the modesty of the daughter of the complainant. The complainant Madhuram (PW-1) scolded him and the appellant threatened him. Due

to fear of defamation of his daughter, the complainant did not lodge any report against the appellant. On 18.07.1992 at about 2.30 pm son of

complainant Madhuram (PW-1) returned from his school and went to play. The appellant took Deepak to a vacant room in his house. He

strangulated Deepak with cloth. It was alleged that other accused persons Pradeep, Janki and Mathura Bai helped the appellant. Madhuram (PW-

1) father of the deceased lodged FIR against all of them. Charge sheet has been filed before the concerned Court.

The trial Court framed charges under Sections 302, 201, 120-B, 363 and 342 of IPC against them. They abjured guilt and pleaded that they

were falsely implicated by the complainant.

Learned trial Court found that the deceased Deepak aged about five years was found in the room which was locked by the appellant from

outside. The key of the room was found in his possession. Deceased Deepak was strangulated by cloth. He also sustained abrasion on his chest

also.

Dr. M.L. Rathore (PW-10) found a reddish groove of about 2 cm wide and 1/2 cm deep encircling neck of the deceased. Due to strangulation

the carotid artery was injured. The left lung, brain, trachea and esophagus were congested. Froth was coming from his mouth. Both lungs were

congested with cyanosis. Right chamber of heart was filled with blood. Left chamber was empty. Liver, spleen, kidney were also congested.

Cyanosis was present there. Dr. M.L. Rathore (PW-10) further opined that Deepak died due to asphyxia from strangulation.

We do not find any reason to disbelieve the opinion of Dr. Rathore. In our opinion, the injuries of the deceased are ante-mortem and homicidal

in nature and sufficient to cause death of the deceased in ordinary course of nature.

There is no direct evidence against the appellant. The conviction of the appellant is based on the circumstantial evidence. In case of Prakash Vs.

State of Rajasthan [2013 Cri. L.J. 2040], Hon''ble Supreme Court has held as under: In a leading decision of this Court in Sharad Birdhichand

Sarda vs. State of Maharashtra, (1984) 4 SCC 116, this Court elaborately considered the standard of proof required for recording a conviction

on the basis of circumstantial evidence and laid down the golden principles of standard of proof required in a case sought to be established on the

basis of circumstantial evidence which are as follows:

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be

fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this

Court indicated that the circumstances concerned ""must or should"" and not ""may be"" established. There is not only a grammatical but a legal

distinction between ""may be proved"" and ""must be or should be proved"" as was held by this Court in Shivaji Sahabrao Bobade v. State of

Maharashtra, (1973) 2 SCC 793 where the observations were made: [SCC para 19, p. 807): ""Certainly, it is a primary principle that the accused

must be and not merely may be guilty before a court can convict and the mental distance between ''may be'' and ''must be'' is long and divides

vague conjectures from sure conclusions."" (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that

is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive

nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so

complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human

probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

Therefore, we re-appreciate the entire prosecution evidence in the light of the aforesaid rules. It is established by Madhuram (PW-1) and Nehru

Suryavanshi (PW-2) that the appellant had enmity with Madhuram. Prior to the incident, they quarreled each other for construction of a drain by

the complainant adjacent to the house of the appellant. In 1988, 1991 and 1992 the appellant and the complainant had quarreled on various issues.

They are neighbors. They were facing prosecution under Section 107/16 of Cr.P.C.

The enmity between the complainant and the appellant is a two edged weapon which can be used either to falsely implicate someone or commit

an offence. Deceased Deepak was the only son of the complainant Madhuram (PW-1) and he had seven daughters at the time of the incident

deceased Deepak was five years old. As per Madhuram (PW-1) on 18.07.1992 at about 10-12 noon, deceased Deepak had gone to school.

Complainant Madhuram (PW-1) and his wife went to Amla. They had instructed their daughters to give food to Deepak when he returned home

from school. The complainant Madhuram (PW-1) and his wife returned home from Amla at about 5.30 pm. The daughters of Madhuram (PW-1)

informed that Deepak was missing. Therefore, he suspected the appellant as earlier the appellant had threatened that ""Deepak bujha dunga"". The

tyre and stick used by Deepak for playing was lying near a well. Therefore, Madhuram (PW-1) searched him in the well but did not find Deepak.

In the meanwhile, a boy named Jitendra aged about 6-7 years came and informed that the appellant took Deepak with him. He gave a chocolate

and went towards the last room belonging to the appellant and his family which was lying vacant and locked from outside. Other persons also

came there. Madhuram (PW-1) used a wooden ladder to climb up the room and he removed earthen tiles (kabelu) of the roof. They saw the body

of Deepak was lying in the room. One dhoti was tied around his neck and white froth was coming out from his mouth.

Thereafter, Madhuram (PW-1) went to the Police Station Betulganj to lodged FIR (Ex.P/1) against the appellant and other accused persons.

Police reached on the spot. Shri V.K.S.Gaur, T.I. also climbed the wooden ladder and saw the body of the deceased inside the room. The house

was owned by the appellant''s family. The family members of the appellant refused to provide key of the room. Hence, the police went to the

appellant and he provided the key which opened the lock. Police found that Deepak had died.

Testimony of Madhuram (PW-1) is corroborated by Nehru Suryavanshi (PW-2). He is also a neighbor of both the parties and resided near

the spot. Rewatibai (PW-3) and Chitaram (PW-5) and particularly by Investigating Officer, V.K.S. Gaur. He clearly deposed that on 19.07.1992

the appellant gave memorandum to him of this incident (Ex.P/3). Thereafter, the appellant himself provided the key and then the lock of the

aforesaid room was opened by Shri Gaur (PW-11). The key was seized vide seizure memo (Ex.P/3).

In the cross-examination V.K.S.Gaur (PW-11) strongly stated that key of the room was recovered from the appellant. This is a strong

incriminating circumstances against the appellant. The dead body of the deceased was found in his house. The house was vacant and the room was

locked from outside and the key of the lock was in the possession of the appellant. The appellant failed to offer any explanation about the above

incriminating circumstances. Therefore, it can normally be presumed that after committing murder of the deceased Deepak, the appellant had

locked the door. He was waiting to disposed of the body of the deceased. In the meanwhile, his plan was exposed.

Jitendra (PW-4) is an important eye witness. He saw the deceased Deepak alive lastly with the appellant. At that time, Deepak and the

appellant both were standing near the wall of the appellant''s house. It is also important to mention here that this version has not been challenged by

the defence counsel. Therefore, his testimony which partly corroborate the prosecution case is also reliable and supported the prosecution story.

On the information received from Jitendra (PW-4), Madhuram (PW-1) and other witnesses went to the house of the appellant where the dead

body of the Deepak was lying inside a room. This complete the chain of circumstance and duly established that appellant had committed murder of

the deceased. There is no missing link in the matter.

Learned trial Court duly evaluated the entire prosecution evidence in the favour of the prosecution story and held the appellant guilty on the

basis of circumstantial evidence against him.

The Trial Court has rightly held the appellant guilty for committing offence under Section 302 of the Indian Penal Code and awarded proper

sentence. We do not find any merit in this appeal. It is hereby dismissed.

Appellant Pavan is on bail. His bail bonds are canceled and he is directed to surrender immediately before the concerned trial Court to

undergo remaining part of the jail sentence, failing which the trial Court shall take appropriate action under intimation to the registry.

Copy of this judgment be sent to the Court below for information and compliance alongwith its record.