Dev Prakash Vs. State of M.P. - Court Judgment

Excerpt:
criminal - circumstantial evidence - section 302 of indian penal code 1860(ipc) - deceased had gone with appellants - thereafter, deceased did not come back to his house - after lapse of three days deceased was found dead - appellants charged with murder of deceased - trial court convicted appellants under section 302 of ipc on ground of circumstantial evidence - hence, present appeal - whether appellants were rightly convicted under section 302 of ipc on ground of circumstantial evidence? - held, rule of circumstantial evidence is that prosecution required to prove the evidences beyond all reasonable doubt and each circumstances independently should form chain pointing towards guilt of accused excluding all reasonable hypothesis of his innocence in his favour - in instant case, appellant has no motive to commit murder of deceased - no chain of circumstances completed to established that appellant was person who committed murder of deceased - so, conviction of appellant under section 302 of ipc is not according to law - accordingly, conviction set aside and appeal allowed - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - 2); the sister and father of the deceased, respectively as well as forensic science laboratory report (ex. the learned trial court has given finding in paragraph 22 of the judgment that prosecution failed to establish any motive for commission of crime. she tried to search at her level best but did not found her brother. she was not able to explain this contradiction by giving any cogent and reliable explanation. looking to these state of affairs, the prosecution has failed to establish the identity of the dead body beyond all reasonable doubt.s.l. kochar, j.1. the appellant has filed this appeal dissatisfied with the judgment passed on 7-4-1995 rendered in s.t. no. 210/89 by learned 1st addl. sessions judge, mhow, district indore, whereby convicted the appellant under section 302, ipc and sentenced to undergo r.i. for life and fine of rs. 500/-; in default of payment of fine to undergo one month r.i.2. the prosecution case as put forth before the trial court was that on 27-4-1989 in the night, during patrolling, police received information near bherugarh from jeet (p.w. 3) about a dead body lying in a nala. on this information, merg no. 6/89 (ex. p-1) was registered. for protection of the dead body one chowkidar was deputed and on 28-4-1989 inquest of the dead body vide ex. p-2 was prepared. map (ex. p-3) was also prepared on the same day. police has seized blood stained earth, stone and controlled earth and stone. from the spot one blue colour chappal, white glass, broken soda bottle, small button and other articles were seized through ex. p-27. upto that time body was not identified by anybody. it was the body of unknown person. from the grip of the deceased certain hairs were also seized. these hairs were sent for examination to the expert. but no such report was filed by the prosecution. post-mortem was performed of the unidentified body on 28-4-1989. post-mortem report is (ex. p-15). on 30-4-1989 in presence of munna s/o baburam, copper ring having white stone was seized. pant, shirt and chappals were also seized from the body of the deceased. on the basis of clothes, slipper and copper ring, the body was identified by yakub s/o stu demelo aged 24 years, resident of chotti khajrani, no. 1158, m.i.g. colony, indore. after identification of the dead body police interrogated the relations of the deceased and according to them deceased went alongwith acquitted co-accused mahesh and present appellant from his house on 26-4-1989, thereafter did not come back. yakub, the brother of the deceased had lodged gumshudgi report in m.i.g. police station. on the basis of this, the m.i.g. police has,registered merg no. 19/89. the acquitted accused mahesh and appellant dev prakash were called in the p.s. for investigation. from their possession, on their disclosure statement under section 27 of the evidence act, the clothes and luna scooter were seized. vide seizure memo (ex. p-9) pant and bushirt were seized from the possession of the appellant dev prakash. these articles were sent to forensic science laboratory and according to laboratory report (ex. p-31), pant -article one and shirt - article two were containing blood. but serologist report was not filed and there is no evidence adduced by the prosecution whether it was the human blood or blood tallying with the blood group of deceased. the appellant and the acquitted co-accused mahesh were arrested.3. after due investigation, the charge-sheet was filed. the learned trial court framed the charges under sections 302 and 302/34 of ipc against the appellant and acquitted co-accused. their defence was one of denial and they claimed for trial. after trial, the co-accused mahesh has been acquitted and the present appellant is convicted as mentioned above.4. we have heard shri jaisingh, learned sr. counsel instructed by shri vivek singh for the appellant and shri g. desai, learned dy. advocate general for respondent-state.5. the conviction of the appellant is mainly based on the testimony of rozy (p.w. 1) and stu demelo (p.w. 2); the sister and father of the deceased, respectively as well as forensic science laboratory report (ex. p-31), disclosing the presence of blood on the pant and shirt of the appellant. the learned trial court has given finding in paragraph 22 of the judgment that prosecution failed to establish any motive for commission of crime.6. rozy (p.w. 1) has deposed that three years prior to the date of her examination in court, in summer days in the night at 11.00 p.m. she and her brother pascal was in the house. the appellant and the acquitted co-accused mahesh came to her house and took pascal on their luna motor cycle. she objected the going of her brother with them. according to her, on the next day she went to m.i.g. police station when her brother did not come back to home, for lodging the report, but her report was not written by the police. she tried to search at her level best but did not found her brother. after three days, she came to know that her brother had died. she had seen the dead body of pascal in m.y. hospital. the face was not in identifiable condition. she identified the dead body on the basis of clothes, chappal and ring. she identified the clothes in the court also. in cross-examination, she was contradicted with her case diary statement (ex. d-1) regarding not allowing her brother to go with the appellant and acquitted co-accused mahesh and regarding the fact that she turned out appellant thrice from her house and did not allow her brother to go with them. she was not able to explain this contradiction by giving any cogent and reliable explanation. in her case diary statement (ex. d-1) she has deposed that deceased told her that the appellant and, co-accused mahesh were his friends and she has denied her this statement. the fact of forcible taking of pascal by the appellant is also missing in her previous statement (ex. d-1). in paragraph 10 she has stated that after three days, her brother yakub has informed her about murder of her brother pascal and before identifying the dead body she came to know about arrest of two persons for murder of her brother.7. at this juncture, the learned counsel for appellant invited attention of this court towards the statement of dr. amar singh (p.w. 11) who performed the autopsy. in paragraph 10 he has stated that on 28-4-1989 clothes of the deceased were sealed and the packet was handed over to the police. ring was also handed over to the police.8. in this view of the matter, the statement of ro/y (p.w. 1) regarding identification of the deceased on the basis of the clothes after three days found to be incorrect because post-mortem was performed on 28-4-1989 whereas she had seen the body after three days. but no identification memo was prepared at the instance of rozy (p.w. 1) or father stu demelo (p.w. 2). the identification of the dead body was got done by four witnesses; ashok, munna, vishwanath and yakub. yakub is the brother of the deceased. all these four witnesses have not been examined by the prosecution to prove identification memo (ex. p-25). this memo was got proved by chetan singh tanwar (p.w. 19), the investigating officer. looking to these state of affairs, the prosecution has failed to establish the identity of the dead body beyond all reasonable doubt.9. the another witness stu demelo (p.w. 2) has deposed that in ^ the night appellant and the acquitted co-accused mahesh came to their house and alongwith them the deceased pascal went on luna.10. now we have to consider whether in fact both these witnesses were the witnesses of evidence of last seen together or not. statement of rozy (p.w. 1) was recorded on 30-4-1989 and statement of stu demelo was recorded on 22-5-1989. why their statements were not recorded immediately on the next day when the dead body was found and why both these witnesses had not gone to the police disclosing the fact that deceased went alongwith them in the night from their house on luna these important questions have not been answered by the prosecution through the witnesses examined in court. on the contrary, stu demelo (p.w. 2), in paragraph five has stated that at the first instance he was not knowing the accused persons. thereafter he named the present appellant and identified on the basis of the fact that he was selling banana in that area. but again he has stated that he was not knowing the name of the present appellant. in this para, he has also deposed that t.i. of m.i.g. police station came to his house and suggested him to lodge a report against the present appellant and mahesh and he lodged the report as suggested by the t.i. and again in the same breathing he has deposed that he sent his daughter rozy and son yakub to lodge the report in the police station. but no such report is filed in the case.11. there is no dispute that apart from the evidence of last seen together and blood stained clothes of the appellant, there is no other evidence available on the record. the evidence of last seen together is inherently a weak kind of evidence and the same require strong corroboration by independent material particulars which is not available in the present case. the blood stained clothes is of no consequence because there is no report that the clothes were containing human blood tallying with the blood group of deceased.12. the conviction of the appellant is based on circumstantial evi-' dence and the rule of circumstantial evidence is that prosecution is required to prove beyond all reasonable doubt each circumstances independently forming chain pointing towards the guilt of the accused excluding all reasonable hypothesis of his innocence in his favour. here in the present case, there is absolutely no motive for the appellant to commit murder of the deceased and there is also no chain of circumstances to establish that the appellant was the person who committed murder of deceased. see kansa behera v. state of orissa, (air 1987 sc 1507).13. in view of the above said factual and legal discussion, the appeal is allowed. the conviction and sentence of the appellant is set aside. the appellant is on bail. his bail bond and surety bond are discharged.