Judgment: 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').
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
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.
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
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.
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