Kamal Mahar Vs. State of M.P. (now Chattisgarh)
EmailAppeal: Criminal Appeal No. 520 of 2002
Petitioner: Kamal Mahar
Respondent: State of M.P. (now Chattisgarh)
Apeal: Criminal Appeal No. 520 of 2002
Judges: S. RAJENDRA BABU, P. VENKATARAMA REDDY & ARUN kUMAR, JJ.
Date of Judgment: Nov 21, 2002
Head Note:
CRIMINAL LAWS
Indian Penal Code, 1860
Section 302 with Evidence Act, 1872 – Sections 3,27 – Murder – Last seen evidence – High Court itself concluding that it was possible to hold that deceased was last seen in company of accused persons. Recovery of a pair of chappal and cloth – One PW claimed the interrogation of accused in his presence when appellant made statement – However, other PW denied interrogation of any accused or any one making a statement. Held that in the circumstances, it is not safe to convict the appellant. Appeal allowed. (Paras 3 to 5)
JUDGEMENT:
S. RAJENDRA BABU,, J.
1. On the allegation that Laldas. Sukhdev Singh and Kamal Mahar murdered one Hukum Singh on 11.11.1987 near Jhajha pond in the village Allaha Navagaon, charges were framed against them and trial was conducted.
2. In the evidence tendered before the trial court the prosecution relied strongly upon the evidence of Keshav Ram -P.W. 11. who is stated to have seen the accused persons last in the company of the deceased on the date of his murder. Further, certain recoveries had been effected pursuant to the statements made by the accused in question and the same have been seized in the presence of Ram Bilas – P.W. 4 and Kanhaiya – P.W. 8 after preparing appropriate memoranda. The trial court based the conviction upon this evidence while the High Court adverted to the evidence of Keshav Ram – P.W. 11 and stated as follows.
“To prove that the accused persons were last seen in the company of the deceased, the prosecution had examined P.W. 11 Keshav Ram. The said Keshav Ram stated before the court that he was informed by Gulab Yadav that the accused Laldas had taken the deceased Hukum Singh with him. It is worth noting that Gulab Yadav has not been examined by the prosecution to confirm the statement that P.W. 11 Keshav Ram was informed by Gulab Yadav, is not found in the case diary statements of P.W. 11 Keshav Ram.(?)”
3. The High Court ultimately concluded that it is not possible to hold that the deceased Hukum Singh was last seen in the company of the accused persons. The High Court found that non-examination of one Gulab Yadav who is stated to have given the information to keshav Ram -P.W. 11 that the accused Laldas had taken the deceased Hukum Singh with him having not been examined was fatal to the case.
4. The recoveries effected, in so far as the appellant is concerned, is a pair of chappals and shirt belonging to the
deceased found at the pond. While Kanhaiya -P.W. 8 has stated that the accused Kamal was questioned and the police recorded the facts and prepared papers accordingly as per exhibit P-9 (where part A to A marked is the statement made by Kamal) and he has also signed the same. However, Ram Bilas -PW. 4 stated that the accused persons were not interrogated by darogaji in his presence and he was simply asked to stay there when search would be made and the accused did not make any statement in his presence. Further Ram Bilas -P.W. 4 does not say anything with reference to the appellant.
5. In the face of very feeble material placed before the court in the shape of recoveries of two articles pursuant to the statements said to have been made by the accused, not supported by one of the witnesses, we think it is not safe to convict the appellant. In that view of the matter, we set aside the conviction and sentence passed by the trial court as affirmed by the High Court against the appellant and allow this appeal. The accused shall be set at liberty forthwith unless required in any other case.
1. On the allegation that Laldas. Sukhdev Singh and Kamal Mahar murdered one Hukum Singh on 11.11.1987 near Jhajha pond in the village Allaha Navagaon, charges were framed against them and trial was conducted.
2. In the evidence tendered before the trial court the prosecution relied strongly upon the evidence of Keshav Ram -P.W. 11. who is stated to have seen the accused persons last in the company of the deceased on the date of his murder. Further, certain recoveries had been effected pursuant to the statements made by the accused in question and the same have been seized in the presence of Ram Bilas – P.W. 4 and Kanhaiya – P.W. 8 after preparing appropriate memoranda. The trial court based the conviction upon this evidence while the High Court adverted to the evidence of Keshav Ram – P.W. 11 and stated as follows.
“To prove that the accused persons were last seen in the company of the deceased, the prosecution had examined P.W. 11 Keshav Ram. The said Keshav Ram stated before the court that he was informed by Gulab Yadav that the accused Laldas had taken the deceased Hukum Singh with him. It is worth noting that Gulab Yadav has not been examined by the prosecution to confirm the statement that P.W. 11 Keshav Ram was informed by Gulab Yadav, is not found in the case diary statements of P.W. 11 Keshav Ram.(?)”
3. The High Court ultimately concluded that it is not possible to hold that the deceased Hukum Singh was last seen in the company of the accused persons. The High Court found that non-examination of one Gulab Yadav who is stated to have given the information to keshav Ram -P.W. 11 that the accused Laldas had taken the deceased Hukum Singh with him having not been examined was fatal to the case.
4. The recoveries effected, in so far as the appellant is concerned, is a pair of chappals and shirt belonging to the
deceased found at the pond. While Kanhaiya -P.W. 8 has stated that the accused Kamal was questioned and the police recorded the facts and prepared papers accordingly as per exhibit P-9 (where part A to A marked is the statement made by Kamal) and he has also signed the same. However, Ram Bilas -PW. 4 stated that the accused persons were not interrogated by darogaji in his presence and he was simply asked to stay there when search would be made and the accused did not make any statement in his presence. Further Ram Bilas -P.W. 4 does not say anything with reference to the appellant.
5. In the face of very feeble material placed before the court in the shape of recoveries of two articles pursuant to the statements said to have been made by the accused, not supported by one of the witnesses, we think it is not safe to convict the appellant. In that view of the matter, we set aside the conviction and sentence passed by the trial court as affirmed by the High Court against the appellant and allow this appeal. The accused shall be set at liberty forthwith unless required in any other case.
