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CASE NO.: Appeal (crl.)  1439 of 2004

PETITIONER: RAGHUNANDAN

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 27/08/2007

BENCH: C.K. THAKKER & D.K. JAIN

JUDGMENT: J U D G M E N T

C.K. THAKKER, J.

1.              This appeal is filed by the appellant-original  accused No. 2 against the judgment and order of  conviction dated July 2, 1991 passed by the Addl.  Sessions Judge, Sidhi in Sessions Case No. 78 of 1990  and confirmed by the High Court of Madhya Pradesh,  Jabalpur on July 7, 2003 in Criminal Appeal No. 812 of  1991.  By these orders, both the Courts convicted the  appellant for an offence punishable under Section 302 of  Indian Penal Code (\021IPC\022 for short) and awarded sentence  of imprisonment for life and to pay a fine of Rs.1000/-, in  default of payment, to suffer further rigorous  imprisonment for three months. 2.              The case of the prosecution was that in the  morning of May 6, 1990, Manfer (hereinafter referred to  as the \021deceased\022) was in his house. The appellant  (original accused No.2) came to the house of the deceased  and asked him that one Sakkhu (original accused No.1)  was calling him. The deceased went with the appellant.  Till afternoon, the deceased did not come back from the  house of the appellant for taking meal. Buddhsen-PW1,  son of the deceased, hence, went to the house of the  appellant for calling his father. There he saw that the  appellant had mounted on the chest of the deceased and  Sakkhu had chopped off the neck of the deceased.  Manfer died on account of assault perpetrated on him  and cutting of the neck. Buddhsen raised alarm and the  accused persons fled away from the place. PW2-Faguni,  wife of Manfer came in search of Manfer to the house of  the appellant where she found her husband lying dead.  Dadua-PW3, another son of Manfer also reached there.  Other persons assembled at the place of occurrence and  witnessed dead body of Manfer lying in the house of the  appellant with injury on his neck present. It was also the  case of the prosecution that before committing murder of  Manfer, accused persons had caused Manfer to consume  liquor. The motive, according to the prosecution, was that  Manfer had not got married his son Dadua-PW3 with the  daughter of the appellant. The appellant, therefore, had  animosity against Manfer due to which he, alongwith  Sakkhu, caused murder of Manfer. 3.              PW1-Buddhsen lodged First Information  Report (FIR) (Ex.P-1) of the incident at Sidhi Police  Station. A.K. Dwivedi-PW6, Town Inspector, Kotwali,  Sidhi, conducted investigation, visited the place of

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occurrence, prepared inquest panchnama of dead body of  Manfer and seized plain as well as bloodstained earth  from the place in the house of the appellant. He also  seized two empty bottles of liquor and a glass. Dead body  of Manfer was then sent through PW5-Constable  Rajkumar Singh to hospital, Sidhi. PW7-Dr. H.P. Singh  conducted the postmortem examination of the dead body  and gave his report (Ex.P-12). Viscera of Manfer was also  collected and sealed. Dhoti and Baniyan were taken off  from the dead body of Manfer and were sealed and sent  to the Police Station. The said articles were forwarded for  chemical examination. Both the accused were then  arrested on May 8, 1990. At the behest of Sakkhu, a  knife said to have been used for commission of the crime  was recovered. Seized clothes, viscera, bloodstained and  plain earth, bottles and glass and knife were sent for  examination to Forensic Science Laboratory, Sagar. After  completion of investigation, challan was filed against the  accused. The Chief Judicial Magistrate, Sidhi committed  the case to the Sessions Court for trial. 4.              The accused were charged for an offence  punishable under Section 302 read with Section 34 IPC.  Both the accused, however, denied their guilt and  claimed to be tried. According to them, they were falsely  implicated in the case. The appellant herein denied the  fact that he had taken Manfer to his house. Accused  Sakkhu asserted that having learnt about the incident,  he went along with PW1-Buddhsen to lodge a report at  the police station. He stated that he was watchman at  jungle and did not allow Buddhsen and others to pasture  their cattle in jungle. Due to that animosity, he was  falsely involved in the case. According to him, he was not  present in the house of the appellant and he had gone to  seek his calf and subsequently he learnt about the death  of Manfer. No defence witness was examined by the  accused persons. 5.              The trial Court, on the basis of evidence  adduced by the prosecution, held that Manfer died  homicidal death. The trial Court also held that from the  facts and circumstances of the case, it could not be said  that PW1-Buddhsen had seen the incident and he was an  eye witness. Keeping in view omissions on the part of  PW1-Buddhsen about certain facts in his first version  and later on in his substantive evidence before the Court,  the trial Court held that it could not be said that PW1- Buddhsen had witnessed the occurrence. But,  considering the circumstances in their entirety, including  the testimony of PW4-Pardesi who was an independent  witness, the trial Court held that it was proved beyond  reasonable doubt and the chain of circumstances was  complete to connect the present appellant (accused  No.2)s with the crime. The Court, however, held that  there was no reliable evidence against co-accused  Sakkhu (accused No.1).  He was, therefore, ordered to be  acquitted. 6.              Being aggrieved by the order of conviction and  sentence, the appellant herein preferred an appeal before  the High Court and the High Court also confirmed the  order passed by the trial Court holding that it was proved  beyond doubt that the appellant had committed murder  of deceased Manfer. 7.              On February 9, 2004, notice was issued by  this Court and thereafter on December 3, 2004, leave  was granted. The matter has now been placed before us  for final hearing.

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8.              We have heard learned counsel for the parties. 9.              Learned counsel for the appellant submitted  that both the Courts had committed an error in recording  conviction against the appellant and in imposing  sentence on him. He submitted that when the evidence of  PW1-Buddhsen, who claimed himself to be an eye  witness to the incident was not believed, there was no  evidence worth the name on the basis of which the  appellant could have been convicted. It was also  submitted that when on appreciation of prosecution  evidence, co-accused-Sakkhu was acquitted, the Courts  could not have convicted the appellant for the offence  punishable under Section 302 IPC on the same evidence.  The counsel urged that it was the case of the appellant  from the beginning that he was falsely charged and since  the chain of circumstances was not unbroken and intact,  benefit of doubt ought to have been given to the  appellant. It was, therefore, prayed that the appeal be  allowed and the appellant be ordered to be acquitted. 10.             The learned counsel for the State, on the other  hand, supported the order of conviction and sentence  recorded by the trial Court and confirmed by the High  Court. He submitted that evidence of PW1-Buddhsen was  not relied upon because of omission of certain facts in  the FIR and in the police statement which he stated later  on in his substantive evidence before the Court.  But  both the Courts were right in relying upon circumstantial  evidence and in observing the chain of circumstances to  be complete and link unbroken. So far as motive is  concerned, it has come in evidence that since the  deceased Manfer and his family members did not approve  the act of the accused of getting his daughter married to  Dadua-son of the deceased, the appellant had animosity  against the deceased.  He, therefore, killed Manfer. There  is ample evidence to show that accused took deceased  with him at his residence on the day of incident and the  said fact is proved beyond reasonable doubt from the  prosecution evidence of Buddhsen-PW1, Faguni-PW2,  Dadua-PW3 and also PW4-Pardesi an independent  witness. It was, therefore, submitted that the appeal  deserves to be dismissed. 11.             Having heard learned counsel for the parties,  in our opinion, it cannot be said that by convicting the  appellant-accused any illegality is committed either by  the trial Court or by the High Court. It is true that both  the Courts have held that no implicit reliance can be  placed on evidence of PW1-Buddhsen-son of the  deceased when he claimed to be an eye witness seeing  accused Nos.1 and 2 killing the deceased. That, however,  does not mean that circumstantial evidence also should  be discarded. As is clear from the judgments of the  Courts below, certain facts were not stated at the initial  stage by PW 1 Buddhsen.  The Courts, therefore, did not  accept him to be an eye witness to the incident. In our  opinion, however, both the Courts were right in relying  upon circumstantial evidence. Such circumstances may  be summarized thus: 1.      There is ample evidence to show that the  deceased was at his residence and it was the  appellant who went to the deceased at the latter\022s  residence, told him that Sakkhu wanted him and  took the deceased along with him. 2.      The evidence of \021last seen together\022 i.e. when the  deceased was taken by the appellant at his  residence.  It was seen by PW1-Buddhsen, PW3-

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Dadua, both the sons of the deceased and PW2- Faguni, widow of the deceased. 3.      PW4-Pardesi was an independent witness. He  had seen accused taking Manfer at his residence.  He also heard the shriek of the deceased. 4.      Motive of commission of crime i.e., the appellant  wanted his daughter to get married to Dadua- PW3, son of the deceased but the proposal was  not approved by the deceased, PW2-Faguni,  widow of the deceased and other family members. 5.      Medical evidence of Dr. H.P. Singh, PW7 who had  conducted post mortem examination of the  deceased. Dr. Singh had proved the injuries on  the person of the deceased which were  responsible for the death of the deceased. 6.      The most important and clinching circumstance  that the dead body of deceased was lying inside  the house of the appellant having serious injuries  on his person. 7.      No explanation has been offered by the appellant  as to how the dead body of deceased came inside  his house. 8.      Seizure of empty bottles of liquor from the house  of the appellant and the presence of liquor in the  viscera of the deceased which went to support the  allegation of the prosecution that initially the  accused served liquor to the deceased and  thereafter killed him.

12.             If, on the basis of all these facts, both the  Courts have come to the conclusion that it was the  appellant who had caused death of Manfer at his  residence, in our opinion, it cannot be said that by taking  such view, any error was committed by them. We see no  infirmity in the order passed by the trial Court and  confirmed by the High Court. 13.             For the foregoing reasons, we see no substance  in this appeal filed by the appellant. We hold that the  order of conviction and sentence recorded by the  Sessions Court and confirmed by the High Court is legal  and proper. The appeal deserves to be dismissed and is  accordingly dismissed. 14.             Before parting with the matter, we may  observe that the trial court was not right in making  certain remarks against PW1-Buddhsen, son of the  deceased while not accepting his claim to be an eye  witness. The Court, while negativing the assertion of the  witness that he had seen the incident of killing his father  by the accused observed that he had not stated in his  police statement that the appellant sat on the chest of  the deceased and accused Sakkhu had cut his throat  with a knife. To that extent, therefore, the Court was not  wrong.  But the Court added that the witness had \021falsely  concocted\022 those facts. In our considered opinion, on the  facts and in the circumstances of the case, the remarks  were ill-founded, unnecessary and uncalled for and the  Court was not justified in making them. All those  remarks are, therefore, ordered to be deleted from the  record.