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CASE NO.: Appeal (crl.)  584 of 2001

PETITIONER: State of Madhya Pradesh

RESPONDENT: Nisar

DATE OF JUDGMENT: 04/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the order of a Division Bench  of the Madhya Pradesh High Court, setting aside the judgment  of conviction recorded by the Trial Court by a learned  Additional Sessions Judge in ST. No.44 of 1988 and directed  acquittal of the respondent. Accused faced trial for offence  under Section 302 of Indian Penal Code, 1860 (in short the  ’Code’).

2.      Background facts in a nutshell are as follows:

The case, as presented at the trial was that Kandhai and  Chherkoo did not return home in the evening. A he-goat of  Sitaram was also missing. The search party located the he- goat in village Karhitola in the house of Barelal (PW-4).  Accused Nisar had sought shelter for the night at Barelal’s  house and had brought the he-goat with him. On being  questioned, the accused admitted having killed Kandhai  because the latter had abused him when he was taking away  the he-goat. He also confessed the murder of Chherkoo whose  body was recovered at his instance.

3. The first information report (Ex.P-l) was lodged by Bhaiyalal  next morning, after recovery of the body of Kandhai. The body  of Chherkoo was recovered during the course of the day on the  information given by accused Nisar during investigation. The  usual investigation followed, and in due course the accused  was tried for the offences as already described above. The trial  resulted in conviction on all heads of charge.

4.      Accused challenged the conviction before the High Court.  

5.       Before the High Court, it was urged that the conviction  was based on surmises and conjectures.  The so called extra  judicial confession has no foundation. The accused, who was a  casual passer-by and taken shelter in the house of Barelal in  the night has been made a scapegoat for the blind murder of  the two graziers.

       Learned counsel for the State submitted that the Trial  Court has analysed the evidence and after drawing proper  inference, has found the accused guilty.

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6.      The High Court found that there was no eye-witness to  the incident. Two factors which weighed  with the Trial Court  were the so-called recovery of an axe and the extra judicial  confession. It was noticed by the High Court that there was no  reference to the extra judicial confession in the FIR and  though blood was stated to have been found on the axe  recovered, the blood grouping was not done. Accordingly, trial  Court’s judgment was set aside and acquittal was directed.   

7.      In support of the appeal, learned counsel for the State  submitted that the extra judicial confession had been rightly  relied upon by the Trial Court and the High Court should not  have discarded the evidentiary value of the extra judicial  confession. Similarly, the axe was recovered at the instance of  the accused and, therefore, the High Court’s conclusions are  erroneous.

8.      It is to be noted that the First Information Report was  lodged much after the so-called extra judicial confession was  made. Evidence on record shows that the body of Kandhai was  lying exposed in the jungle and his lathi and Khomari were  lying close-by. In the FIR (Exh P-1), there was no reference to  the so-called confession by the accused. Informant Bhaiyalal’s   explanation that he may have forgotten to disclose this fact to  the police while lodging the FIR, is totally improbable and  wholly unacceptable. If in fact there was any confession as  claimed that would have been the first thing to be mentioned  and not that there was suspicion of the accused being the  assailant.  Raghvendra Singh Baghel, PW-12 had admitted  that the body of Chherkoo was lying about 100 paces from the  dead body of Kandhai. The High Court rightly noticed that no  disclosure was necessary for locating the dead body. The axe  and the khomari were also lying close-by and even a casual  search would have revealed the dead bodies and the articles.  The Chemical Examiner in his report Ex.P-37 had found that  the axe was stained with human blood. Curiously, the blood  group was not ascertained. It was, therefore, not possible to  conclude that the axe was used for killing the two deceased  persons.

9. Above being the nature of evidence of prosecution  witnesses, the High Court was perfectly justified in finding  the  prosecution version vulnerable, and the evidence scanty to  fasten the guilt on the accused in a case where the  prosecution version rests on circumstantial evidence.

10. There is no scope for interference in this appeal which is,  accordingly, dismissed.