Allowed

Madan Gopal v. the State of M.P.

Chhattisgarh HC14 Aug 2012CRA/977/1997

Case brief

AI extract

What is this about?

In a criminal appeal under Section 374(2) CrPC, the High Court of Chhattisgarh set aside the life imprisonment sentence imposed on an appellant for murder. The Court held that the chain of circumstantial evidence was incomplete, as the 'last seen' theory was unreliable due to a long time gap and the motive was not established due to the hostility of the key witness.

What did the court decide?

The conviction and sentence are set aside. The appellant is acquitted. Bail is confirmed; bail bonds cancelled and surety discharged.

Madan Gopal Vs the State of M.P. — Murder and Culpable Homicide | Chhattisgarh HC (2012)

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HIGH COURT OF CHHATTISGARH. BILASPUR

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Hon' bie Mr. SunII Kumar Sinha. J & Hon'bie Mr. Radhe Shvam Sharma. J

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I'i^^^Hhw'

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Criminai Appeal No.977/1997

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APPELLANT

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Madan Gopal, s/o Deo Charan Satnami, Aged about 21 years, R/o vittage Mohtara, P.S. MasKri, District Bitaspur (MP) (Now Chhattisgarh)

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Versus

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RESPONDENT

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State of Madhya Pradesh (Now Chhattisgarh) Through Police StationMasturi, District Bilaspur.

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{Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure. 1973)

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Appearance:

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r. Rajiv Shrivastava, Advocate for the appellant.

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Mr. Arvind Dubey, Panel.Lawyerforthe State.

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JUDGMENT

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(14.08.2012)

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Following ji^dgment ofthe Court was dictated on Board by Sunil Kumar ^lnha.J.

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This appeal is directed against the judgment dated 30 ,th il, 1997, commonly passed in S.T. Nos. 396/91 & 291/92 by the Fourth Additional Sessions Judge, Bilaspur. By the impugned

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CRA 977/1997

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judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life.

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(2) The facts, briefly stated, are as under:-

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.{l»;!i,.,'

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, ._

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DeceasedKrishna •,'Kumar was friend of the appellant. They were residents of same village. Krishna Kumar had love affairs with the niece of the appeliant namely- Ku. Shashikala. Shani Kumar (PW-9) had seen them in compromising position. Shani Kumar (PW-9) narrated the above fact to the appellant. The case of frie prosecution is that on account of above motive, in the night of 28.6.91, the appellant and 7 other co-accused persons (ali acquitted) took the deceased to the nearby Stone Mines and committed his murder by causing multiple serious injuries. The incident was witnessed by Ramlal (PW-2). Ramlal (PW-2) did not disclose this fact to anyone. In the morning of 29.6.91, villagerssaw the dead body of the deceased in a field near the Stone Mines. First Information Report (FIR Ex.P/14) was lodged by Kaushal Prasad (PW-11). The case of the prosecution was mainly based on eye-witness account of Ramlal (PW-2) as also on the evidence of 'last seen' by Kaushal Prasad (PW-11 ) and Sanjay Kumar (R/V-12). Since Ramlal (PW-2) did not disQlo?® the incident to anyone for about more than 9 monttis, the learned Sessions Judge did not rely on his testimony. Finding to this effect has been recorded in para 25 of the judgmerrt. The learned Sessions Judge relied on the circumstanpe that the deceased was seen in the company of the appellant in the evening of 28.6.91 and

CRA 977/1997

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further that the appellant had 'motive' to commit murder of the deceased, therefore, the appellant was liable for commission of murder of the deceased. The appeilant, thus, was convicted under Section 302 IPC and the remaining 7 co-accused per^ons (A-2 to A-8) were acquitted of the charges framed against Uiem.

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(3) Mr. Rajiv Shrivastava, learned counsel appearing on behalf of the appellant has argued that the sole eye-witness namelyRamlal (R/V-2) was disbelieved by the Sessions Court; thus, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence; the circumstance of 'iast seen' was not proved by the evidence of Horilal (R/V-6) and Sanjay Kumar (PW-12). AboutKaushal Prasad (R/V-11), he argued that Kaushal Prasad (PW-11) allegedly saw the deceased in eompany of theappellant in the evening of 28.6.91 and the dead body was found in the morning of 29.6.91, therefore, there was a long time gap and in theabove situation, this circumstanGe would not be incriminating against the appellant. Ab^ut 'motive', he argued that the main witness of < / .. motive namely- Shani Kumar (PW-9) has turned hostile and he hasnot supported the case ofprosecution.therefore, moth/ewas

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also not established.

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CRA 977/1997

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i'*i!^lli.';Kaii.-

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(4) On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State opposed these •V arguments and supported the judgment passed by the Sessions Court.

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We have heard leamed counsel for the parties at length and have also perused the records ofthe Sessions Case.

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(6) In a case based on circumstantial evidence, the circumstances must be fully established. The circunnstances should be of conclusive nature and tendency and they should not be capable of being explained, and further, the chain of circumstantial evidence should be complete so as not to leave any doubt about the complicity of the aceused in crime in question.

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I n Sk. Yusuf v. State of West Benaal. AIR 2011 SC 2283, (7) the Supreme Court held that the 'last seen theory' comes into play where the time gap between the point of time when frie accused< / and, deceased were last seen alive and when the deceased is found dead is so small fhat possibility of any person other than the accused being the author of the crime becomes impossible. (Vide,: Mohd. Azad atias Samin v. State of West

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ia]

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CRA 977/1997

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Bengal, (2008) 15 SCC 449 and State thr. Central Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC 109).

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<s'{;is'li

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!.l »fe

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In the instant case, Horilat (PW-6) though deposed in his examination-in-chief that he had- seen the deceased in the company of the appellant one day prior to the incident, but in his cross-examination, he admitted in clearwords that he came to know in the evening of the said date, that the deceased was with the appellant and he himself had not seen the deceased in the company ofthe appellant.

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(9) Sanjay Kumar (PW-12), in para 2 of his examination-mchief deposed ttiat theappellant had calted and teken his brother (deceased) in the evening. Though he stated in his Court evidence like above, but this fact is an omission in his case diary statement (Ex. D/2-A). In cross-examination, when he was faced with the above omission in his case diary statement (Ex.D/2-A), he could notexplain it and deposed that he cannot telt the reasQn as to why the/above facts were not mentioned in his diary >. / statement.

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Kaushal Prasad (RA/-11) deposed that on 28.6.91, he returned from his field.at about 12.00 noon and aftertaking his meals, he again went to. his fields. In the evening, when he

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returned to his house after taking bath in the village tank, the appellant eame to his house and took the deceased with him. Thereafter, the deceased did not return and his dead bodv was found on the next morning. Kaushal f?rasad (PW-11) has lodged FIR (Ex.P/14). The FIR was lodged at about 12.30 noon on 29.6.91. He has not mentioned the exact time of seeing the dead body of the deceased. However, according to his evidence, he must have seen dead body of the deceased prior to 12.30 noon of 29.6.91. This shows that there was a long time gap^{betweenthedeceasedseenaliveinthecompanyofthe} appellant and his dead body found. On account of above long time gap betweeh the 2 crucial points of time, it was not safe to rely on the solitary circumstance of 'last seen' for conviction of the appellant, as looking to the long time gap, possibility of any 3 person coming in between cannot be fully ruled out. We are of the view that in the above facts and circumstances of the case, the solitary circumstance of 'last seen' was not sufficient.

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'motive' j;1-1) So far^ ^ of the crime is concerned, the prosecution came with the case that since the deceased had love affairs and illksit relations With the niece of the appellant, the appellant committed myrder of the deceased. About the ilficit relations between the deceased and the niece of the appellant,

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CRA 977/1997

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the prosecution has examinedShani Kumar (PW-9). The case of the prosecution is that Shani Kumar (PW-9) had seen the niece of the appetlant in compromising position with the deceased, which he told to the appellant an.d thereafter, the appellant committed murder of the dec6ased. Shani Kumar (PW-9) has not supported the case of the prosecution. He deposed in clear words that he does not know anything about the incident He had not seen the niece of the appeltant and the deceased in compromising position. He was declared hostite by the Public Prosecutor. Even in the cross-examination by the Public Prosecutor, nothing material could be elicited in his evidence, on which, the 'motive' suggested by the prosecutioncan be held to be proved. Thus, the above circumstance was also not established against the appellant.

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(12) For the foregoing reasons, we are unabte to sustain the conviction of the appellant on the above set of circumstantial evidence. The circumstances were not fully established. They ./ were not bf-fconelusive nature and tendency and were capable of being exptained. The chain of circumstantial evidence was also not complete. We are of the view that the learned Sessions Judge fell into error-by convicting the appellant under Section 3Q2 IPC on the above set of circumstantiat evidence.

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8 CRA 977/1997

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JHEt:?

(13) For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set-aside. The appellant is acquitted of the charges framed againsthim. It is stated that the appellant ison bail. His bail bonds are cancelled and surety stands discharged.

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Sd/Sunil Kumar Sinha Judge .

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Sd/^.S. Stiarma Judge

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Madan Gopal v. the State of M.P.

Case brief

What is this about?

What did the court decide?

Madan Gopal v. the State of M.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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