Kashi @ Kashiram Vs. State of Madhya Pradesh - Court Judgment

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criminal - motive - acquittal - sections 201 and 302 of indian penal code,1860(ipc) - petitioner tried under sections 201 and 302 of ipc and convicted by trial court - hence, present petition - held, weapon recovered from petitioner but same was not sent to expert for obtain his opinion that from said weapon 26 incise wounds looked to size and impact may come - according to complainant petitioner released from jail and incident occurred after 3 months - if petitioner was keen enough to kill deceased why he should not have wait up to 3 months - hence, petition 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)]. - complainant as well as the witnesses when saw the deceased, they found him seriously injured having umpteen injuries and was smeared with blood. according to us, the evidence of solitary eye-witness is not reliable. the given case in hand is rather on better footing because in the present case, no distance has been stated by ramkishan yadav from where he has seen the incident. 21. if the dead body of the deceased was dragged by the appellant for a long distance from the place of occurrence, certainly throughout the path presence of blood must be there, but in the spot map, presence of blood is not shown as well as the evidence of ramkishan yadav (p.a.k. shrivastava, j.1. feeling aggrieved by the judgment of conviction and order of sentence dated 24-3-1999 passed by learned sessions judge, damoh in s.t. no. 8/99, convicting the appellant under sections 302 and 201 of ipc and thereby sentencing him to suffer imprisonment of life and 7 years respectively with further stipulation that both the sentences shall run concurrently, this appeal has been preferred by him under section 374 (2) of the code of criminal procedure, 1973.2. in brief the case of prosecution is that earlier to the incident, appellant committed murder of the son of his uncle ramkishan yadav (p.w. 1), eventually he was tried and in sessions trial no. 75/83, he was convicted and was sentenced to suffer life imprisonment on 31-7-1984. as per the case of prosecution, because father of the appellant parasram (hereinafter to be referred as 'the deceased') did not help him in that case, hence, he was having annoyance against the deceased.3. on 14-11-1998, ramkishan yadav was sleeping nearby the field of the deceased and during the late night in between 3-4 a.m. he saw appellant wielding blows by sabbal (iron rod having flat end) to the deceased. on seeing the incident, said ramkishan yadav went to narrate the incident to his uncle's son chandan prasad yadav and both of them went to birju to whom also the incident was narrated. the complainant alongwith these two persons again came to the place of occurrence and these persons saw that appellant was dragging the deceased towards the field of saguyanai. on hearing the clack sound of foot steps of these persons, appellant by leaving the deceased at that place ran away carrying sabbal with him. complainant as well as the witnesses when saw the deceased, they found him seriously injured having umpteen injuries and was smeared with blood. he was dead.4. complainant ramkishan yadav again narrated the incident to chhuti patel, gotiram yadav and harinarayan choubey, who advised complainant to lodge the report. eventually, ramkishan yadav went to bandakpur chowki and lodged the report (exh. p-1) which was reduced in writing by r.s. rajput.5. on lodging of fir, the criminal law was triggered and set in motion. the investigating agency arrived at the spot; prepared panchayatnama of the dead body; sent the dead body for the post-mortem; spot map was prepared; ordinary and blood stained soil from the place of occurrence was seized; bed sheet, towel etc. were also seized; recorded statement of the witnesses; arrested the appellant and on account of his memorandum statement under section 27 of the evidence act recovered the sabbal which was used as weapon in the commission of offence from his house and sent the blood stained articles including the weapon to the forensic science laboratory.6. after the investigation was over, a charge-sheet was submitted in the committal court which on its turn committed the case to the court of session where the appellant was tried.7. the learned trial court on the basis of the allegations made against the appellant in the charge-sheet framed charges punishable under sections 302 and 201 of ipc. needless to emphasize, appellant abjured his guilt and pleaded complete innocence.8. in order to bring home the charges, prosecution examined as many as 9 witnesses and placed exhibits p-1 to p-26, the documents on record. the defence of appellant is of false implication and the same defence he set forth in his statement recorded under section 313 of cr.pc, but he did not choose to examine any witness in support of his defence.9. the learned trial court on the basis of evidence placed on record came to hold that the charges framed against the appellant are proved and eventually, convicted him and passed the sentence which we have already-mentioned hereinabove. in this matter, the present appeal has been filed by appellant assailing the judgment of conviction and order of sentence.10. the contention of shri praveen yadav, learned counsel for the appellant is that as per prosecution's own case, the incident had taken place at late night in between 3-4 a.m. and there is nothing in the evidence of the sole eye-witness ramkishan yadav (p.w. 1) in order to hold that there was any source of light and if that is the position, it is difficult for ramkishan yadav to identify the appellant from a considerable long distance in the dark night. it has also been put forth by learned counsel that as per the statement of ramkishan yadav (p.w. 1) and chandan singh (p.w. 2) from the place of occurrence, which is a field of the deceased, he was dragged for a considerable long distance but it has not been mentioned in the spot map that any blood was found on the path. the contention of learned counsel is that as per post-mortem report and the evidence of dr. s.k. khatri (p.w. 6), the deceased was having as many as 25 injuries on his person and, therefore, if the deceased was dragged for a considerable long distance, all along the path, blood must have been found, but, there is no iota of evidence in this regard. hence, the case of prosecution becomes highly doubtful. by putting a deep dent on the recovery part aisabbal which was used as weapon in the commission of offence, it has been argued by learned counsel that vide exhibit p-7, the blood stained sabbal and blood stained clothes were recovered on the disclosure statement of the appellant from his house but according to sole eye-witness ramkishan yadav (p.w. 1), who is also the witness of recovery memo, sabbal was recovered outside the house of the appellant nearby the 'peepal' tree where the same was embedded and at the instance of appellant it was exhumed. the contention of learned counsel is that in the peculiar facts and circumstances, the recovery part also becomes highly doubtful.11. it has been vehemently contended by shri praveen yadav, learned counsel that the sabbal was not sent to the doctor to obtain his opinion whether the injuries sustained by the deceased may come by this object. it has also been put forth by him that the report of forensic science laboratory has also not; been placed on record and therefore adverse inference should be drawn against the prosecution. on these premised submissions, it has been argued that by allowing this appeal, judgment of conviction and order of sentence passed against appellant be set aside and he be acquitted from all the charges.12. per contra, shri dixit, learned public prosecutor argued in support of the impugned judgment and has submitted that for no rhyme or reason, the testimony of ramkishan yadav (p.w. 1) should be disbelieved and learned trial judge has assigned cogent reasons to convict the appellant and therefore this appeal sans substance and the same be dismissed.13. having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed.14. in the present case, the sole eye-witness is ramkishan yadav (p.w. 1), who is having his field adjoining to the field of the deceased. before appreciating his evidence, it would be condign to mention here that vide exh. p-24, which is a certified copy of the judgment passed by second additional sessions judge, damoh in s.t. no. 75/83 (state of m.p. through p.s. hindoria v. kashi @ kashiram), dated 31-7-1984 appellant has been convicted under section 302 of ipc for committing the murder of son of ramkishan yadav, who is the complainant of this case. as per the case of prosecution, after serving out the sentence, present appellant was released from the jail on 15-8-1998. in this backdrop we shall now examine the testimony of sole eye-witness ramkishan yadav (p.w.1).15. according to this witness, he was in his field. at late night in between 3-4 a.m., he felt that certain cattle have entered inside his field, as a result of which he woke up and went to ward off them. at that juncture, he saw that in the field of deceased, appellant by sabbal was giving its blows on the person of the deceased. on seeing the incident, this witness went to report chandan singh at his (chandan's) field, which is 700-800 ft. far away from the field of the deceased. after narrating the incident to chandan singh and birju, all of them again came back to the field of deceased and they found that appellant was dragging the deceased towards the field of saguyanai. according to this witness, on the arrival of the complainant, chandan singh and birju, appellant fled from the place of occurrence by carrying sabbal with him. all these persons found that deceased was lying in injured condition and his brain was exposed. he was also smeared with the blood and was having several injuries on his person, the deceased was dead.16. according to this witness, because deceased did not help the appellant when he was facing the murder trial, therefore, he had murdered his own father. he has also stated that appellant in that case after serving out the sentence was released from jail on 15-8-1998.17. on close scrutiny of the testimony of this witness, it is revealed that the incident took place in the late night in between 3-4 a.m. there is nothing in his evidence in order to indicate that there was any source of light in the field in order to identify the appellant causing injuries to the deceased. according to us, it was incumbent upon the prosecution to collect the evidence and in absence of any positive evidence in this regard in the peculiar facts and circumstances it is difficult to hold that complainant ramkishan yadav has seen the appellant causing injuries by sabbal to the deceased. according to us, the evidence of solitary eye-witness is not reliable. we have also perused the spot map (exh. p-2) in this regard and we did not find any iota of evidence in order to hold that there was any source of light, because no electric pole etc. has been shown in the spot map nor there is any evidence of the investigating officer in this regard. the evidence of sole eye-witness ramkishan yadav is totally silent on the point of the source of light. the supreme court in arokia thomas v. state of t.n. (2006) 10 scc 542, has categorically held that in absence of any source of light since there is no evidence of any electric light because there was no source of light in which the witnesses could identify the accused person, the benefit of doubt was given and he was acquitted. in another decision hemraj and ors. v. state of haryana : 2005crilj2152 again the supreme court gave benefit of doubt to the accused since there was no evidence of source of light available in the vicinity. the supreme court held that version of eye-witness that he had seen with particular weapons in the hands of accused from a distance of over 30 fee cannot be relied. according to us, abovesaid two decisions of supreme court are squarely applicable in the present factual scenario. the given case in hand is rather on better footing because in the present case, no distance has been stated by ramkishan yadav from where he has seen the incident. the source of light has also not been stated by him.17. solitary eye-witness ramkishan yadav (p.w. 1) has only stated in para 2 of his testimony that after seeing the incident, he went to the field of chandan singh and birju which is 700-800 ft. far away from the place where he saw the incident. according to us, if this witness is narrating the distance of the field of chandan singh from the place where from he saw the incident, why he has not stated the distance of place of occurrence and the place from where he has seen the incident. it was the duty of the prosecution to collect the evidence about the distance from where the sole eye-witness has been the incident that too in dark night at 3-4 a.m. apart from this, on going through the entire testimony of this witness, nowhere it is gathered that he raised some alarm or scolded on the appellant but as per his testimony, silently he went away from the place from where he saw the incident and approached chandan singh and birju at a distance of 700-800 ft. which is highly unnatural. he has also not stated that he became astonished or was under fear, therefore, he did not shout. on the point of the source of light, we may also profitably place reliance on two more decisions of the supreme court, they are baboo and ors. v. state of m.p. air 1979 sc 1042 (para 8) and ram narain and ors. v. state of punjab : 1975crilj1500 .18. it has also not come in the testimony of ramkishan yadav that while giving umpteen blows of sabbal he was scolding on the deceased or was shouting and therefore phonetically he identified the appellant. according to us, since there is no evidence of the prosecution that there was any source of light and in absence of the evidence that phonetically ramkishan yadav (p.w. 1) identified the appellant, according to us, still it is a mystery and suspense that he correctly identified the appellant and, therefore, appellant is entitled for the benefit of doubt.19. so far as the recovery part of the sabbal, which was used as weapon is concerned, according to us, it is highly suspicious. solitary eye-witness ramkishan yadav (p.w. 1) is also the witness to recovery memo of sabbal (exh. p-7). by this recovery memo, which is based on disclosure statement of appellant a sabbal was seized from his (appellant's) house, but if the document of seizure memo (exh. p-7) is kept in juxta-position to the evidence of ramkishan yadav (p.w. 1), and they are read conjointly it would reveal that the story of prosecution that weapon and the blood stained clothes were recovered from the house of appellant becomes highly suspicious, because specifically this witness in para 18 of his cross-examination has admitted that outside the house of appellant, sabbal was embedded near 'peepal' tree and the same was exhumed by the appellant. thus, according to us, the recovery part is also highly suspicious. our view is further strengthened because as per prosecution's own case, vide exhibit p-25, dated 26-11- 98, the blood-stained articles including the sabbal were sent to forensic science laboratory but the report of the chemical examiner has not been placed on record and there is no explanation in this regard. hence, the recovery of sabbal at the instance of appellant is also highly suspicious.20. we may further add that as per the case of the prosecution as borne out from the testimony of ramkishan yadav (p.w. 1) and chandan singh (p.w. 2), appellant dragged the dead body of deceased for a long distance. as per the statement of autopsy surgeon dr. s.k. khatri (p.w. 6) there were as many as 26 incise wounds on the person of the deceased and they were through out the entire body, but neither in the spot map (exh. p-2) nor in the evidence of ramkishan yadav (p.w. 1) and chandan singh (p.w. 2) it has been so stated that blood was found on the path were the dead-body was dragged.21. if the dead body of the deceased was dragged by the appellant for a long distance from the place of occurrence, certainly throughout the path presence of blood must be there, but in the spot map, presence of blood is not shown as well as the evidence of ramkishan yadav (p.w. 1) is silent on this point. thus, the case of prosecution becomes highly suspicious for this another reason also.22. apart from what we have held hereinabove, the corroborated by the medical evidence, since autopsy surgeon dr. s.k. khatri (p.w. 6) has categorically stated in para 5 of his examination-in-chief that all the injuries were caused by hard and sharp object. hence, for this additional reason also the presence of solitary eye-witness becomes highly suspicious and his evidence is not found to be truthful.23. it would be pertinent to mention that sabbal was recovered from appellant on 15-11-1998, but the same was not sent to the doctor in order to obtain his opinion whether from the sabbal (iron rod) 26 incise wounds, looking to the size and the impact thereof, may come or not. according to us, the investigating agency was duty bound to obtain such an opinion from the doctor. even otherwise, in the court also the said sabbal was not shown to the doctor in order to obtain his opinion whether the injuries sustained by the deceased may come by that weapon.24. although motive part is not significant when the case rests on direct evidence but at this juncture looking to facts and circumstances, we are of the view that if the appellant was having any annoyance with the deceased why he kept mum for a long period. as per the testimony of complainant, the appellant was released from jail on 15-8-1998 and the incident had occurred on 14-11-98. if the appellant was keen enough to kill the deceased, why he waited upto 14-11-1998. according to us, it appears to be a blind murder and because son of complainant was murdered by the appellant and he came out from the jail after serving out the sentence, he got an opportunity to rope him falsely in this case, this cannot be ruled out looking to the facts and circumstances and the evidence place on record.25. for the reasons stated hereinabove, we are unable to uphold the conviction of appellant. eventually, this appeal succeeds and is hereby allowed and the conviction and sentence of appellant is hereby set aside by extending our benefit of doubt.26. appellant is acquitted from all the charges, he is in jail, he be set at liberty forthwith if not required in any other case.