State Of Madhya Pradesh vs Nikki

This is an application for grant of Leave to Appeal under Section 378(3) read with Section 378(1) of the Cr.P.C. against the judgment dated

31.10.2017 passed by the learned Additional Sessions Judge, Sounsar District Chhindwara (M.P.) in Sessions Trial No. 297/2014 whereby, acquitting

the respondent Nos. 1 & 2 Nikki and Praveen for the offence punishable under Sections 302 & 201 IPC and the respondents No. 3 & 4 Jaidev and

Vishesh in respect of the offence punishable under Section 201 IPC.

The prosecution story, in short, is that the dead-body of the deceased, Subhash was found in water near a runnel at Sarpa river. The said fact was

recorded in merg intimation by the Police as it was informed by the Sarpanch Haribhau Parteti, in Police Chowki Nandanwadi, P.S. Pandhurna.

The respondents were arrested and the recovery of rope and stone was made upon their disclosure statements. The allegation against them was

that after killing the deceased they had thrown the dead-body into the river with the help of car.

After completing investigation, 'challan' was filed before the competent Court of jurisdiction. The trial Court after considering the evidence has

acquitted the respondents as mentioned herein above.

Assailing the aforesaid order of acquittal, learned Government Advocate for the applicant/State submitted that the trial Court has failed to

appreciate the evidence in proper perspective especially the evidence of PW-6, Sarita, wife of the deceased and also other evidence.

The prosecution case is based upon circumstantial evidence. The report was lodged by Haribhau (PW-1) who is the Sarpanch of the village. He

had informed the police on telephone that he had seen one dead body. On the basis of aforesaid intimation, Dehati Marg intimation (Ex.P-1) was

registered by the Sub-Inspector Ku. Nivedita Soni (PW-11). The crime seen (Ex.P-2) was prepared. The dead body panchnama is Ex.P-3 and the

site plane is Ex.P4.

Head Constable Ravi Singh Thakur (PW-12) stated that on 15.07.2014 he had recorded the missing report. Rajkumar Malviye (PW-

7) who is the brother of the deceased stated that on 14.07.2014 his daughter-in-law, Sarita had informed him that as the deceased did not return to the

house and therefore, he lodged a missing report (Ex.P-12) at the Police Station Mohkhed. The same statement has been given by Sarita (PW-6), wife

of the deceased. She stated that her husband had taken food in the night at 07:00 p.m. and on the same night at about 09:00 p.m. he had gone to meet

Pancham, thereafter he had not come back. In the morning at about 04:00 a.m. when her husband did not come back, she had informed Rajkumar

Malviye (PW-7).

As the dead body was seen by Haribhau (PW-1), the Police started investigation after registering the case. Sub-Inspector K.L. Gujre (PW-10)

went to the spot and the dead body was identified by the witnesses and the panchnama was prepared vide Ex.P8.

The autopsy was conducted by Dr. Anil Kadwe (PW-5) and the death was found to be homicidal in nature. She has narrated that on 13.07.2017

the accused Jaidev had quarreled with her daughter-in-law Rajkumari in the house of Pancham Mehra, thereafter in the evening, again Jaidev had

abused her husband.

The prosecution has launched the entire prosecution case on the basis of suspicion expressed by Sarita Malviya (PW-6) that since Jaidev had

intimidated her husband a day before the incident and therefore she has strong reason to believe that the deceased has been murdered by Jaidev and

other accused persons.

In the present case, neither any recovery has been made to connect the accused persons for commission of the murder of the deceased nor from

the call details, any evidence has been adduced to establish the case against the accused.

Learned Government Advocate for the applicant/State could not point out any evidence against the accused persons except the statement of

Sarita Malviya (PW-6 ) which has been disbelieved rightly because a day before the incident, there was exchange of some hot words with one of the

respondents and the deceased, and the same itself is not sufficient to establish the case.

The prosecution has miserably failed to adduce any evidence to link the present respondents for commission of the alleged offences.

We are of the considered view that the prosecution has failed to prove its case beyond the doubt as the chain of circumstance has to be complete.

In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 Supreme Court Cases 116 the Apex Court has held as under:

The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence:

The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely may be fully established;

The facts so established should be consistent 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;

The circumstances should be of a conclusive nature and tendency;

They should exclude every possible hypothesis except the one to be proved; and

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.

The judgment passed in the case of Sharad Birdhi Chand Sarda (supra) has further been relied upon by the Apex Court in the case o f H.D.

Sikand (dead) through Lrs Vs. Central Bureau of Investigation and another [2017 (2) MPLJ (Cri.) (S.C.) 4] holding that if the chain is not complete,

the accused is entitled to benefit of doubt.

In view of the aforesaid, the impugned judgment need not to be interfered with by this Court. Accordingly, the application for grant of leave to

appeal is hereby dismissed.