SHANKARLAL Vs. STATE OF M P

JUDGEMENT

(1.) The appellant and one Satish were prosecuted for an offence under section 302 Indian Penal Code, for causing death of appellants brother Madanlal. Satish has been acquitted but the appellant has been convicted under section 302, Indian Penal Code and has been sentenced to imprisonment for life. By this appeal he challenges his conviction and sentence.

(2.) According to the prosecution, appellant Shankarlal and deceased Madanlal had quarrelled over retention of price of betel sold in the market. This was late in the evening. Thereafter the deceased slept in his house while the appellant and other inmates also spent the night in. the same house. The next morning, i.e. 2-11-1982, the deceased was found missing and it is the case of the prosecution that Shankarlal made a search. He went on enquiring about his missing brother. Finally Debati Nalish (Ex. P/6) was recorded on 24-11-1982 and on that basis first information report (Ex. P/7) was lodged. Dead body of Madanlal was than found in a well situated near the house of the deceased. It was taken out at the instance of the police. Later, a knife said to be belonging to the appellant was also recovered from that very well. On post mortem examination of the dead body of Madanlal, it was found that he died as a result of throttling. Besides on the chin an injury was also found, which could be caused by a sharp edged weapon. At the trial witnesses were examined to show that the appellant was the person last seen with the deceased, that it is on his information that the dead body of Madanlal was found in the well and so also was discovered the knife. The trial Court accepted this evidence and on this basis has held the appellant alone guilty of causing Madanlals murder. For want of any evidence against the co-accused Satish, he has been acquitted.

(3.) Admittedly, there is no eye-witnesses of the incident. The case of the prosecution rested solely upon circumstantial evidence. It was, therefore, the bounden duty of the prosecution to show that the circumstances relied upon are wholly inconsistent with the innocence of the accused appellant. In our opinion, the prosecution has failed to do so and the lower Court has committed an error in finding that the circumstances established conclusively point out the guilt of the appellant. The trial Court has found that the deceased was last seen with the appellant. Here there appears to be some misconception in the mind of the lower Court. Not only this, the evidence has also been miss-appreciated. What is contemplated is that the deceased and the accused should be seen together last and under circumstances which may lead to the Inference that thereafter alone the incident has taken place. In the present case, what we find is that not only the appellant but also his mother and other person slept in the house as usual There is nothing particular or suspicious about Shankarlals remaining in the house. The deceased and the appellant Shankarlal both used to normally remain in the house previously and on the fateful night also they slept in the house as usual. From this it is difficult to infer that the appellant and the deceased were together whereafter deceased was not seen. To our mind, the trial Court committed an error in holding that the deceased and the appellant were last seen together and that their residing in the house as usual in the night prior to the deceaseds missing from the house has to be taken as an incriminating circumstance against the appellant.