BHUWANESHWAR Vs. STATE OF M P

JUDGEMENT

(1.) The Appellant stands convicted under Section 302 IPC to life imprisonment, ordered on 15.4.1997 by the Additional Sessions Judge, Baikunthpur, in Sessions Trial No. 47 of 1996.

(2.) It is the case of the prosecution in the First Information Report, Exhibit P-12, lodged by the witness Chandra Shekhar, that the deceased was the uncle of the Appellant and had adopted him as his son in absence of his own progeny. Due to love and affection, the deceased had willed his properties to the Appellant. Relations between them gradually soured because of which the Appellant killed the deceased to obtain advantage and benefit of the will as the deceased had subsequently thrown the Appellant out of his house. The inquest report was marked as Exhibit P-5 and the post-mortem report, Exhibit P-7, disclosing 7 injuries and the expected time of death was 12:00 to 24:00hrs earlier, homicidal in nature. The assault is alleged to have taken place between 10:00 p.m. to 5:00 a.m.

(3.) Learned Counsel for the Appellant submitted that suspicion howsoever strong cannot take the place of proof. There is no eyewitness to the occurrence. There is no evidence by the prosecution to invoke even the last seen theory. The fact that the deceased may have executed the will in favour of the Appellant and that relations may have soured between them, and the Appellant may have been subsequently thrown out of the house for that reason, are only materials for an unfounded suspicion. In a case of circumstantial evidence, conviction cannot be based on suspicion. It was next submitted that the alleged recovery of a "balua", an agricultural instrument, alleged to have been used for the assault with presence of blood on it and the clothes of the Appellant allegedly with blood on it as mentioned in the forensic report pursuant to a confession under Section 27 of the Evidence Act, may at best be corroborative materials but cannot be substantive evidence for conviction especially in a case of circumstantial evidence. The blood also has been found to be inadequate for a serologist report that the group of the blood found on the clothes of the Appellant or on the "balua" was the same as that of the deceased. In a blind case like the present of circumstantial evidence, if the prosecution choses to rely upon the evidence collected under Section 27 of the Evidence Act, the serologist report was essential in absence of which the benefit of doubt must be given to the Appellant. The Trial Court has committed gross mis-appreciation of evidence to hold on basis of suspicion combined with the recovery that the charges stood established beyond reasonable doubt in a case of circumstantial evidence.