Shiv Prasad vs State Of Madhya Pradesh

This appeal has been filed by the appellant being aggrieved by the judgment dated 30.07.2007, passed by learned IIIrd Addl. Sessions Judge

(Fast Track), District-Khandwa in Sessions Trial No. 104/2006, whereby the appellant has been found guilty for the offence punishable under

Sec(cid:54)on 302 of IPC and has been sentenced to undergo life imprisonment and fine of Rs.200/-, in default of payment of fine to undergo further

R.I.for one year.

The prosecu(cid:54)on case,in brief, is that the appellant was having a love affair with Sunita (PW.7), however, the marriage of Sunita was se(cid:59)led

somewhere else. The appellant was angry and wanted to stop her marriage at any cost, and with this intent, he commi(cid:59)ed murder of Durgesh,

brother of Sunita by strangulation and threw his body outside the village in the field of Kotwar.

As per prosecu(cid:54)on, on 18.02.2006, Kachrulal Son of Ramprasad (PW.1) had gone to invite his rela(cid:54)ves for the forthcoming marriage of his

daughter Sunita (PW.7) to be held on 22.02.2006. On returning at 9 PM in the night he found the dead body of his son Durgesh, aged about

seven years, lying in his courtyard. On enquiry, he was told that at about 7 PM the deceased had gone to watch television in the

neighbourhood. He did not return even when the light went off, therefore, brother of Kachrulal (PW.1) and his family members went to search

for the deceased. At around 9 PM they found the dead body of deceased lying in the field of Ramgopal Kotwar. The rela(cid:54)ves brought the dead

body back to the house and on inspection found finger marks on the neck of the deceased.

A report (Ex.P/1) to this effect was lodged by Kachrulal (PW.1) on 19.02.06 at 2.30 AM in the night at PS-Naya Harsood, District-Khandwa.Â

On the basis of the report (Ex.P/1), criminal law was set into mo(cid:54)on. Naksha Panchayatnama (Ex.P/2) of the dead body was prepared and the

body was sent for postmortem to the Primary Health Centre, Naya Harsood. Dr. Ashishraj Mishra (PW.11) who conducted the postmortem

found that the death was caused due to cardio-respiratory arrest and found following injuries as per Ex.P/11:-

“The young child lying on postmortem table. The eyes were closed. The rigor mor(cid:54)s was present. There were abrasion and contusion in

left cheek. Abrasion in left side of chin 1â€​ x 1/2â€​.

Blackish colour skin over front of neck interrupted C shaped 1†x 1/2†approximately. Right sub- mandibular region black skin ½ “ in size.

There is distended abdomen. There is fracture of hyoid bone. There is no visible mark of injury in anal region. No deposit seen in anal

region. There is fracture of cervical vertebra.â€​

During the course of the investigation, the statements of the witnesses were recorded. Rakesh Mody (PW.10), the Investigating Officer, on

inves(cid:54)ga(cid:54)on, found that appellant Shiv Prasad was having love affair with the sister of the deceased whose marriage was to take place on

22.02.06. The appellant wanted to stop the marriage of Sunita (PW.7). The deceased was last seen with the appellant by Amardas (PW.2)

and Kachrulal Son of Lakhanlal (PW.3) who stated that the appellant bought chocolates for deceased from the shop of Ramsewak (PW.8). The

appellant was arrested on 21.02.2006 vide Ex. P/9, and on his disclosure a broken silver chain and a photograph of appellant and Sunita (PW.7)

were recovered vide Ex.P/3 and P/4 respectively.

A(cid:77)er comple(cid:54)on of inves(cid:54)ga(cid:54)on, charge sheet was filed against the accused-appellant. Prosecu(cid:54)on, to establish its case, examined 11

witnesses. The appellant when examined under Section 313 of the Cr.P.C. has abjured his guilt and pleaded false implication. He examined

one witness in defence who was primarily produced to establish that the deceased Durgesh had died due to bea(cid:54)ng given by her

grandmother.

Shri S.K.Dixit, learned counsel appearing for the appellant has submi(cid:59)ed that the case is based on circumstan(cid:54)al evidence. There is no

eye-witness to the incident and the circumstan(cid:54)al link was not proved beyond doubt. It is urged that the appellant could not have been

convicted on the basis of last seen theory in absence of any proof of motive.

Shri S.D.Khan, learned Govt. Advocate appearing for the State, on the other hand, contended that the finding and conclusion arrived at by

the trial Court were based on cogent evidence, and circumstan(cid:54)al evidence brought on record by the prosecu(cid:54)on was sufficient to convict the

appellant.

Having heard the learned counsel for the par(cid:54)es at length, and on me(cid:54)culously perusal of the record, it is clear that there is no direct

evidence to establish that the appellant murdered the deceased by strangulation, and the evidence regarding murder is purely circumstantial.

The principles of circumstan(cid:54)al evidence is reiterated in Nizam and another Vs. State of Rajasthan (2016) 1 SCC 550, the Supreme Court has

held :-

Case of the prosecu(cid:54)on is en(cid:54)rely based on the circumstan(cid:54)al evidence. In a case based on circumstan(cid:54)al evidence, se(cid:59)led law is that the

circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature.

Moreover, all the circumstances should be complete, forming a chain and there should be no gap le(cid:77) in the chain of evidence. Further, the

proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his innocence.Â

In State of U(cid:59)ar Pradesh Vs. Shyam Behari and another (2009) 15 SCC 548, referring to the case of Gambhir Vs State of Maharashtra (1982)

2 SCC 351, the Supreme Court has held:-

“The law regarding circumstan(cid:54)al evidence is well se(cid:59)led. When a case rests upon the circumstan(cid:54)al evidence, such evidence must sa(cid:54)sfy

three tests: (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 tendency unerringly poin(cid:54)ng towards guilt of the accused; (3) the circumstances, taken cumula(cid:54)vely,

should form a chain so complete that there is no escape from the conclusion that within all human probabili(cid:54)es the crime was commi(cid:59)ed by

the accused and none else. 4. The circumstan(cid:54)al evidence in order to sustain convic(cid:54)on must be complete and incapable of explana(cid:54)on of any

order hypothesis than that of the guilt of the accused. The circumstan(cid:54)al evidence should not only be consistent with the guilt of the accused

but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, AIR 1982 SC, 1157)â€​.

In the instant case, the trial Court has relied on the tes(cid:54)mony of Amardas (PW.2), Kachrulal (PW.3) and Ramsewak (PW.8). According to

PW.2 and PW.3, they went to purchase bidi at around 7 PM from the shop of PW.8, where they saw the deceased with the appellant who

bought chocolates and gave the same to the deceased and went away with him. They have further stated that a(cid:77)er purchasing bidi they

went to their house and had meals, and therea(cid:77)er they saw the family members of the deceased searching for him. They told them that

deceased had gone with the appellant. They also joined the search party and went to the house of the appellant but he was not there.

Therea(cid:77)er at about 8-9 PM dead body of the deceased was found in the field of Kotwar . They have further stated that Kailash and Vinod

took the dead body of the deceased boy Durgesh to home and found finger marks on his neck. Ramsevak (PW.8) who is the shopkeeper, had

stated that at around 7-7.30 PM, the appellant came with the deceased and purchased chocolates for him and therea(cid:77)er the appellant took the

deceased with him. The statements of these witnesses are consistent, credible, unimpeachable and are of sterling quality and can be relied

upon.

It is established from the record that the body of the deceased was found between 8-9 PM in the field of Kotwar by the family members

who brought the body home. From the evidence on record, it is clear that the deceased went out of his house at about 7 PM. He was

therea(cid:77)er seen in the company of the appellant by Amardas (PW.2),Kachrulal (PW.3) and Ramsevak (PW.8), and the dead body of the

deceased was found at around 9 PM in the field of Kotwar. It is clear that the (cid:54)me gap between the point of (cid:54)me when the appellant and the

deceased were last seen alive and when the deceased was found dead is very small. Thus, ruling out the possibility of any other person other

than the accused being author of the crime.

In Ramreddy Rajesh Khanna Reddy and another vs. State of A.P. (2006) 10 SCC 172, the Supreme Court has observed thus :-

“27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased

were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the

crime becomes impossible. Even in such a case courts should look for some corroboration.

In State of U.P. v. Satish (2005) 3 SCC 114, this Court observed:

The last-seen theory comes into play where the (cid:54)me-gap between the point of (cid:54)me when the accused and the deceased were last seen

alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime

becomes impossible. It would be difficult in some cases to posi(cid:54)vely establish that the deceased was last seen with the accused when there is

a long gap and possibility of other persons coming in between exists. In the absence of any other posi(cid:54)ve evidence to conclude that the

accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is

positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.

Sunita (PW.7), sister of the deceased, had tes(cid:54)fied that she knew the appellant for the last two years and had a love affair with him.

According to this witness, the appellant wanted her to run away with him, but he was already married and had children. She had further stated

that her marriage was se(cid:59)led and was to take place on 22.02.06, therefore, she refused to go with him, on which the appellant threatened her

that he will not let her marry and to stop her marriage will kill her brother. The statement of Sunita (PW.7) is corroborated by Suresh (PW.4)

and Vishnu (PW.6) who had stated that they had seen Sunita with the appellant and he had threatened her.

From the aforesaid, it is clear that the appellant was having love affair with Sunita whose marriage was to take place on 22.02.06, the

appellant had asked Sunita to run away with him which she had refused. From the evidence of Suresh (PW.4), Vishnu (PW.6) and Sunita

(PW.7), it is established that the accused wanted to stop the marriage of Sunita and for that purpose took the deceased with him and

murdered him.

A(cid:77)er considering the material on record and the preposi(cid:54)on of law laid down by the Apex Court, it is apparent that the prosecu(cid:54)on has

firmly established the chain of evidence leading to the guilt of the appellant. The commission of the offence by the accused-appellant has

been clearly established and the trial Court has rightly considered the statements of the witnesses and the documents on record, in recording

a finding of guilt against the appellant. Therefore, we do not find any illegality or perversity in the finding of guilt recorded by the trial

Court.  As such, we affirm the same and dismiss the appeal, accordingly.

It is informed that appellant Shiv Prasad is in jail. He shall remain incarcerated to serve out the remaining part of his sentence in

accordance with the conviction recorded by the trial Court.